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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: O.D., A MINOR :              IN THE SUPERIOR COURT OF
                                  :                    PENNSYLVANIA
                                  :
APPEAL OF: T.M.D., MOTHER         :                 No. 1905 MDA 2017


                 Appeal from the Decree, October 31, 2017,
               in the Court of Common Pleas of Berks County
                    Orphans’ Court Division at No. 85603


BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MARCH 20, 2018

      T.M.D. (“Mother”) appeals from the October 31, 2017 decree granting

the petition of N.A.D (“Father”) and A.D. (“Stepmother”) (collectively,

“Petitioners”) to involuntarily terminate Mother’s parental rights to minor

female child, O.D. (“Child”), pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2),

(5), and (b). After careful review, we affirm.

      Child was born in January 2008 to Mother and Father.       Mother and

Father were subsequently married on August 6, 2010, but separated shortly

thereafter, on December 3, 2010. At the time of their separation, Mother

and Father shared legal and physical custody of Child.     Mother and Father

were ultimately divorced on May 3, 2012. Petitioners, in turn, met in 2011

and have been married since October 17, 2014. Petitioners and Child have

resided together as a family unit since 2014. (Notes of testimony, 10/31/17

at 7-8, 11, 35-36.)
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      On August 1, 2013, Father was granted sole physical and legal custody

of Child.   (See Emergency Custody Order, 8/1/13.)          The trial court

summarized the underlying facts and procedural history, as gleaned from

the termination hearing, as follows:

            Custody [of Child] was split 50/50 [between Mother
            and Father], but that changed in May 2013.

            [Petitioners] attempted to pick up Child upon
            returning from a trip in May 2013, but they were
            unable to reach Mother. They found her and Child at
            a motel with a man. Mother appeared to Father to
            be under the influence of drugs or alcohol. During
            her interaction with Father, Mother had her eyes
            closed and leaned against a car just to be able to
            stand.    Father took Child and called the police.
            Father also filed an emergency custody petition,
            which ultimately led to an Order of August 1, 2013
            granting Father sole legal and physical custody of
            Child. This Order remains in effect.

            After entry of the custody order, Mother’s only
            contact with Child consisted of sporadic telephone
            calls, which Father arranged. Around Christmas time
            in 2013, Mother left a scooter for Child. In 2014,
            Father saw Mother at a bank. He offered Mother an
            opportunity to call Child on Sundays and if done
            consistently perhaps contact could progress. Calls
            were not consistent, and, when they did occur, Child
            became reserved and quiet and often displayed
            uncertainty, doubt, and confusion. Father stopped
            allowing telephonic contact upon Child’s request.
            Mother has not spoken to Child in 2 – 2½ years.
            Last year, Father took Child to counseling six times
            for emotional issues regarding Mother.          Child
            requested that the counseling stop.

            In response to his counsel’s questioning, Father
            testified that Mother has had no involvement with
            Child since January 2017 – no support has been
            paid, no cards have been sent, no telephone calls,


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            and no requests for a visit. In that time Father
            received three text messages from Mother – one in
            January to wish Child a happy birthday, one in
            February for Valentine’s Day, and one around March
            to congratulate him on his buying a house. The
            February and March texts also asked Father to tell
            Child that she loves her.

            At all times since the entry of the [August 1,] 2013
            custody order, Mother has had Father’s telephone
            number, and she has known where Father’s parents
            reside. In 2013, Child told Mother which school she
            was attending.      Father also takes Child to see
            various members of Mother’s family monthly.

            In addition to Child, Mother has two other children.
            She has a five-year-old son that she has been seeing
            the past few months for an hour or two on
            Wednesdays. The visits are supervised. Prior to
            these last few months, Mother had not seen this
            child since he was eight months old.            Mother
            acknowledged that this child does not know her and
            reintegration into her life is necessary. She indicated
            that she could not do reintegration with both children
            at the same time and that she has been making life
            changes three months at a time. Mother also has an
            infant son with her current boyfriend.

            Mother claimed she contacted a legal aid agency in
            2014 regarding Child. At the time, her income was
            too great to qualify for aid.         She went back
            six months later. The agency assisted Mother with
            getting some custody relief with regard to her son,
            but allegedly the agency was concerned about
            proceeding with an action regarding Child because
            Mother did not have a current address for Father.
            On October 16, 2017, only two weeks prior to the
            rescheduled hearing in this matter held on
            October 31, 2017 (the hearing was originally
            scheduled for September 27, 2017), Mother finally
            filed a petition to modify the 2013 custody order.

Trial court opinion, 12/5/17 at 3-5.



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     On July 21, 2017, Petitioners filed a petition to involuntarily terminate

Mother’s parental rights to Child, pursuant to Sections 2511(a)(1), (2), (5),

and (b).    Stepmother simultaneously filed a petition for adoption of Child,

with the consent of Father.        On September 26, 2017, the trial court

appointed    Melissa   Krishock,   Esq.   (“Attorney   Krishock”),   as   guardian

ad litem (“GAL”) for Child.        A termination hearing was scheduled for

September 27, 2017, but was subsequently continued.             On October 30,

2017, Attorney Krishock filed a comprehensive, 13-page GAL report,

recommending that it was in the best interest of Child to have Mother’s

parental rights terminated. On October 31, 2017, the trial court conducted a

termination hearing; all the parties were present for said hearing and were

represented by counsel.      Following the hearing, the trial court entered a

decree involuntarily terminating Mother’s parental rights to Child, pursuant

to Sections 2511(a)(1), (2), (5), and (b). On November 30, 2017, Mother

filed a timely notice of appeal to this court. That same day, Mother filed a

concise statement of errors complained of on appeal, in accordance with

Pa.R.A.P. 1925(b).      On December 5, 2017, the trial court filed its

Pa.R.A.P. 1925(a) opinion.

     Mother raises the following issues for our review:

             1.    Did the [trial] court err by terminating
                   [Mother’s] parental rights because [Petitioners]
                   did not establish by clear and convincing
                   evidence that [Mother’s] parental rights should
                   be terminated?



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            2.    Did the [trial] court err by terminating
                  [Mother’s]   parental rights because   the
                  evidence presented by [Petitioners] was
                  insufficient to support the [trial] court’s
                  decision?

            3.    Did the [trial] court err by terminating
                  [Mother’s] parental rights because the [trial]
                  court failed to continue the hearing until the
                  custody action pending in another court could
                  be heard?

            4.    Did the [trial] court err by terminating
                  [Mother’s] parental rights because it denied
                  [Mother’s] request that [Child] be evaluated by
                  a professional with regard to the bond between
                  Mother and Child?

Mother’s brief at 5-6 (capitalization omitted).

      In matters involving involuntary termination of parental rights, our

standard of review is as follows:

                    The standard of review in termination of
            parental rights cases requires appellate courts to
            accept the findings of fact and credibility
            determinations of the trial court if they are supported
            by the record. If the factual findings are supported,
            appellate courts review to determine if the trial court
            made an error of law or abused its discretion. [A]
            decision may be reversed for an abuse of discretion
            only       upon     demonstration       of     manifest
            unreasonableness, partiality, prejudice, bias, or
            ill-will. The trial court’s decision, however, should
            not be reversed merely because the record would
            support a different result.       We have previously
            emphasized our deference to trial courts that often
            have first-hand observations of the parties spanning
            multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and internal quotation

marks omitted). “The trial court is free to believe all, part, or none of the


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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) (citation omitted). “[I]f 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) (citation omitted).

      The termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis of the grounds for termination followed by the needs and welfare of

the child.

             Our case law has made clear that under
             Section 2511, the court must engage in a bifurcated
             process prior to terminating parental rights. 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
             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).         We

have defined “clear and convincing evidence” as that which is so “clear,

direct, weighty and convincing as to enable the trier of fact to come to a


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clear conviction, without hesitance, of the truth of the precise facts in issue.”

In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (citation and

quotation marks omitted).

      In this case, the trial court terminated Mother’s parental rights

pursuant to Sections 2511(a)(1), (2), (5), and (b), which provide as follows:

            § 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.

                  (2)    The    repeated   and   continued
                         incapacity,  abuse,   neglect  or
                         refusal of the parent has caused
                         the child to be without essential
                         parental    care,    control   or
                         subsistence necessary for his
                         physical or mental well-being and
                         the conditions and causes of the
                         incapacity,  abuse,   neglect  or
                         refusal cannot or will not be
                         remedied by the parent.

                  ....

                  (5)    The child has been removed from
                         the care of the parent by the court
                         or under a voluntary agreement
                         with an agency for a period of at
                         least six months, the conditions


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                        which led to the removal or
                        placement of the child continue to
                        exist, the parent cannot or will not
                        remedy those conditions within a
                        reasonable period of time, the
                        services or assistance reasonably
                        available to the parent are not
                        likely to remedy the conditions
                        which led to the removal or
                        placement of the child within a
                        reasonable period of time and
                        termination of the parental rights
                        would best serve the needs and
                        welfare of the child.

                 ....

           (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 of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b). We need only agree with the

trial court as to any one subsection of Section 2511(a), in addition to

Section 2511(b), to affirm an order terminating parental rights. In re M.M.,

106 A.3d 114, 117 (Pa.Super. 2014).

     Instantly, we analyze the trial court’s decision to terminate under

Section   2511(a)(1)    and   (b).       To    meet    the    requirements   of


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Subsection 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 Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (citation

omitted; emphasis added). The trial court must then consider “the parent’s

explanation for his or her conduct” and “the post-abandonment contact

between parent and child” before moving on to analyze Subsection 2511(b).

Id. (citations omitted).

      Upon review, we find that there was clear and convincing evidence to

support the trial court’s termination of Mother’s parental rights to Child,

pursuant to Section 2511(a)(1).      The record establishes that Mother has

demonstrated a settled purpose of relinquishing parental claim to Child and

has performed virtually none of her parental duties for over four years.

Specifically, the evidence established that Mother has had no physical

contact with Child since August 1, 2013, when Father was awarded sole legal

and physical custody of Child. (Notes of testimony, 10/31/17 at 15.) Father

testified that Mother has not contacted him to inquire as to whether she

could visit Child since January 2017.      (Id. at 16-17.)    Mother, in turn,

acknowledged that she has not seen Child since 2013, but alleged this was

because “she was going through a hard time,” which included substance

abuse issues, and placed blame on Father for failing to update his address or



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answer the phone. (Id. at 38-39, 46, 49.) The record further reflects that

Mother failed make any attempt to have her custody arrangements modified

until two weeks before the rescheduled October 31, 2017 termination

hearing, despite the fact she became aware of Father’s new mailing address

in March 2017. (Id. at 42, 48.)

      Additionally, Mother acknowledged that she has Father’s telephone

number and was aware of the fact that Father frequently takes Child to visit

Mother’s family members, but has only spoken with Child on the telephone

sporadically since August 2013. (Id. at 39, 47, 51.) Father testified that

Mother has not made a single phone call to speak with Child since January

2017, but did send three text messages referencing Child in early 2017.

(Id. at 15-16.) Mother, in turn, acknowledged that the last time she spoke

to Child on the telephone was 2½ years ago.          (Id. at 16, 39-40, 47.)

Mother also testified that at one point she sent cards to Child at least once a

month for “probably six months to a year,” and that she had sent a card to

Father’s parents’ house a few months ago. (Id. at 45.) Father, however,

testified that Mother did not send any cards or gifts to Child in the

six months preceding the filing of the termination petition. (Id. at 15).

      Notably, Mother acknowledged at the termination hearing that she has

not performed any of her parental duties with respect to Child for 6 months

prior to the filing of Petitioner’s termination petition, but avers that her

struggles in 2013 have “made [her] a stronger person and . . . taught [her]



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that [she] could survive anything.” (Id. at 44, 49.) Mother contends that

she is now ready to integrate into Child’s life, starting with supervised visits

1 or 2 hours per week, so that she can “get to know the beautiful person

[Child] is.” (Id. at 43.) As the trial court noted, however, Mother’s attempt

“to obtain contact with Child is simply too little, too late.”        (Trial court

opinion, 12/5/17 at 6.)

      Based on the foregoing, we agree with the trial court that there exists

clear and convincing evidence of record to establish that Mother’s conduct

“reveals a settled intent to relinquish [her] parental claim to [Child] or a

refusal or failure to perform parental duties,” sufficient to support the

termination of her parental rights pursuant to Section 2511(a)(1).           See

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

      Next,     we   consider   whether    termination   was    proper      under

Section 2511(b).     With regard to Section 2511(b), our supreme court has

stated as follows:

              [I]f the grounds for termination under subsection (a)
              are met, a 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 emotional needs and welfare of the child have
              been properly interpreted to include [i]ntangibles
              such as love, comfort, security, and stability. . . .
              [T]his Court held that the determination of the
              child’s “needs and welfare” requires consideration of
              the emotional bonds between the parent and child.
              The “utmost attention” should be paid to discerning
              the effect on the child of permanently severing the
              parental bond.      However, as discussed below,



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           evaluation of a child’s bonds is not always an easy
           task.

In re T.S.M., 71 A.3d at 267 (internal case citations omitted).

     In concluding that the termination of Mother’s parental rights best

served the needs and welfare of Child, the trial court emphasized that it was

clearly in Child’s best interest to move forward with her adoption by

Petitioners, given that “[they] provide all of the Child’s care.” (Trial court

opinion, 12/5/17 at 6.) The trial court properly reasoned as follows:

           Stepmother is Child’s primary caregiver – she packs
           Child’s lunch, takes her to school, communicates
           with teachers, arranges after-school care, takes
           Child shopping and to get their nails done, teaches
           Child about puberty, and administers discipline as
           necessary. Stepmother loves Child and described
           herself as Child’s rock. Child has directly expressed
           a desire for Stepmother to adopt her.

           Stepmother has been involved in Child’s life since
           Spring 2011. Father, Stepmother, and Child have
           acted as a family unit since 2014.     Father and
           Stepmother were married on October 1[7], 2014.
           Eighteen months ago the family unit grew by one –
           Child got a baby brother.

Id. The record clearly supports these conclusions. (See notes of testimony,

10/31/17 at 9-10, 31-33.)

     Additionally, Attorney Krishock, the GAL for Child, opined that the

testimony she heard at the termination hearing did not change her

recommendation that it was in the best interest of Child to have Mother’s

parental rights terminated:




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                 No, Your Honor, what I heard today does not
           change any of the opinions in my [October 30, 2017]
           report. What I heard today that bolsters, I believe,
           my opinion that [Mother] at least knew of [F]ather’s
           address she just testified in March of this past year.
           She did -- she did nothing at that time to attempt to
           change her custodial status in regard to [Child].

                  I also heard a lot of he didn’t, I want, he
           didn’t, I want. It was blame and all about her and as
           this Court is aware, and I told this to [Mother] when
           we met in my office, that sometimes being a parent
           means that you look at what’s right for your child,
           not necessarily what you want or what you think is
           best or putting blame on somebody else.

                 So after meeting with the family I would not
           change my opinion. I think that termination would
           be appropriate and the adoption would be
           appropriate. As [Child] gets older if she believes
           that she would like to have contact with [Mother]
           and she becomes an adult that is obviously her
           choice. But right now I think it is in her best interest
           to have [Mother’s] rights terminated and this
           adoption move forward.

Notes of testimony, 10/31/17 at 53-54.

     We further agree with the trial court that Mother’s request that Child

be evaluated by a professional to analyze the bond between her and Mother

is unwarranted, especially in light of the fact that “the lack of contact

between Mother and Child has resulted in the dissolution of any bond that

might have ever existed.”    (Trial court opinion, 12/5/17 at 6; see also

Mother’s brief at 21-22.)     This court has continually recognized that

“Section 2511(b) does not require a formal bonding evaluation.” In re Z.P.,

994 A.2d 1108, 1121 (Pa.Super. 2010) (citations omitted).             “[I]n cases



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where there is no evidence of a bond between a parent and child,” as is the

case here, “it is reasonable to infer that no bond exists.” In re Adoption

of J.M., 991 A.2d 321, 324 (Pa.Super. 2010) (citations omitted).            In

reaching this conclusion, we emphasize that “[a] child’s life, happiness and

vitality simply cannot be put on hold until the parent finds it convenient to

perform parental duties.” In the Matter of the Adoption of A.M.B., 812

A.2d 659, 675 (Pa.Super. 2002).      Our standard of review requires us to

accept the trial court’s findings of fact and credibility determinations where,

as here, they are supported by the record. See In re T.S.M., 71 A.3d at

267. Accordingly, we decline to reweigh the evidence and reassess witness

credibility, as Mother repeatedly asserts that we should do.

      Based on the foregoing, we conclude that the trial court did not abuse

its discretion by involuntarily terminating Mother’s parental rights to Child

pursuant to Section 2511(a)(1) and (b).          Accordingly, we affirm the

October 31, 2017 decree of the trial court.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/20/2018




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