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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF C.M.B.                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: D.B., NATURAL FATHER            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1116 WDA 2019

                 Appeal from the Decree Entered June 28, 2019
    In the Court of Common Pleas of Mercer County Orphans’ Court at No(s):
                                  2019-145A


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                          FILED JANUARY 2, 2020

        D.B. (Father) appeals from the decree entered in the Court of Common

Pleas of Mercer County (orphans’ court) granting B.B.’s (Mother) petition

seeking the involuntary termination of Father’s parental rights to the minor

child, C.M.B. (Child) (born June 2012), so that C.B. (Stepfather) can adopt

Child. We affirm.

        Father and Mother never married but lived together on numerous

occasions. Mother has had primary physical custody of Child since she was

born, subject to Father’s periods of partial physical custody. Father struggles

with drug addiction, including methamphetamines and heroin.            He was

incarcerated from December 2015 through March 2018, and then from August


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*   Retired Senior Judge assigned to the Superior Court.
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2018 through the present.             His lengthy criminal background includes

convictions for Robbery, Operation of a Meth Lab, Burglary, and Possession

with Intent to Deliver a Controlled Substance (PWID). Father has never paid

any child support to Mother, and, when employed, threatened to quit his job

to avoid wage attachments. Father’s last visit with Child was in July 2018.

        Mother and Stepfather married in February 2019. On March 1, 2019,

Mother filed a petition for involuntary termination of Father’s parental rights

to Child. The orphans’ court appointed counsel for Father and a guardian ad

litem for Child. The court held a hearing on the petition on June 26, 2019.

        On June 28, 2019, the orphans’ court entered its decree terminating

Father’s parental rights pursuant to The Adoption Act, 23 Pa.C.S. § 2511(a)(1)

and (b).1 The court determined that Father failed to maintain contact with

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1   These provisions state:

        (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



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Child once he was incarcerated in August 2018, that he showed no interest in

supporting her financially or emotionally, and made minimal effort to maintain

a parent-child bond with her. Father timely appealed and he and the orphans’

court complied with Rule 1925. See Pa.R.A.P. 1925(a)(2)(i)-(ii).

       On appeal, Father challenges the orphans’ court’s termination of his

parental rights.2 He claims that the court, in finding that he made virtually no

effort to maintain the parent-child relationship, did not consider adequately

the fact that he was incarcerated.               Father avers that because he is

incarcerated, his ability to inquire about Child is limited and Mother cut off

contact with him. He also challenges the court’s credibility determinations,

claiming that it accepted Mother’s version of the facts and disregarded his

entirely.




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       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. § 2511(a)(1) and (b).

2 “[O]ur 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) (citation
omitted).

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                                        I.

      In cases involving the termination of parental rights, “[w]e give great

deference to the trial courts that often have first-hand observations of the

parties spanning multiple hearings.” In re Adoption of K.M.G., 2019 WL

4392506, at *6 (Pa. Super. filed Sept. 13, 2019) (en banc) (citation omitted).

“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.” In re B.C., 36 A.3d 601, 605 (Pa. Super. 2012) (citation omitted).

“Where the hearing court’s findings are supported by competent evidence of

record, we must affirm the hearing court even though the record could support

an opposite result.” In re R.L.T.M., 860 A.2d 190, 191–92 (Pa. Super. 2004)

(citation omitted). “In a proceeding to involuntarily terminate parental rights,

the burden of proof is upon the party seeking termination to establish by clear

and convincing evidence the existence of grounds for doing so.” Id. (citation

and internal quotation marks omitted).

      In this case, as previously mentioned, the orphans’ court found that

Mother met her burden of proof under 23 Pa.C.S. § 2511 (a)(1) and (b). In

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

party must establish “that for a period of at least six months prior to the filing

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

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

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


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2003) (citation omitted). “Although the six months immediately preceding

the filing of the petition are the most critical to the analysis, the trial court

must consider the whole history of a given case and not mechanically apply

the six-month statutory provision.” In re B., N.M., 856 A.2d 847, 855 (Pa.

Super. 2004) (citation omitted). Additionally, “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. § 2511(b).

      “A parent is required to exert a sincere and genuine effort to maintain a

parent-child relationship; the parent must use 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.” In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003) (citation

omitted). Once the evidence establishes a failure to perform parental duties,

the trial court must then consider: “(1) the parent’s explanation for his or her

conduct; (2) the post-abandonment contact between parent and child; and

(3) consideration of the effect of termination of parental rights on the child

pursuant to Section 2511(b).” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super.

2008) (citation omitted).

      We also note that a parent’s responsibilities are not tolled during his

incarceration. See In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012).

Rather, we must inquire whether the parent has used those resources at his


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disposal while in prison in continuing a close relationship with the child. See

id. “Where the parent does not exercise reasonable firmness in declining to

yield to obstacles, his other rights may be forfeited.” Id. (citation omitted).

                                         II.

                                          A.

       In this case, Father contends that the orphans’ court did not have

competent evidence because it did not credit his testimony that, despite the

obstacles he faced, including his incarceration and Mother’s thwarting of his

attempts to contact Child, he made efforts to maintain his bond with Child as

evidenced by the numerous phone calls he made to Mother and letters he sent

to Child.

       In support of this argument, Father points to his testimony that during

the relevant time period, he wrote fifteen to twenty letters to Child, and that

he attempted to call her on approximately fifteen occasions, at different hours

of the day because he did not know when Mother worked or if Child was in

school. (See N.T. Hearing, 6/26/19, at 36-37). He further testified that he

had just started serving his thirty-five to seventy month sentence for the PWID

offense and he was unaware of his minimum release date. (See id. at 29-

30).

       In contrast, Mother testified that in the six months leading up to her

filing of the petition, Father wrote two letters to Child, one of which Mother

was able to find. (See id. at 17-19). Mother also testified that Father called


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her cell phone a few times during school hours when Child was unavailable

and while Mother was at work and was unable to answer the phone. (See id.

at 19). The one time Mother did answer Father’s phone call when he called in

the evening, they had an argument and he did not ask if Child was present.

(See id. at 19-20).    Mother further testified that during the relevant time

period, Father did not provide any financial or emotional support for Child and

that he did nothing resembling parenting towards Child with regard to her

healthcare, schooling, education or religion. (See id. at 21-22).

      After weighing the testimony, the orphans’ court found Father’s

testimony not credible, and it specifically credited Mother’s testimony that

Father only sent two letters and that she spoke with Father over the phone on

one occasion. (See Trial Court Opinion, 8/14/19, at 4). The credibility of

witnesses and all conflicts in testimony are to be resolved by the finder of fact.

See In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa. Super. 2002). Absent

an abuse of discretion, an error of law or insufficient evidentiary support for

the trial court’s decision, the decree must stand. See In re B.L.W., 843 A.2d

380, 383 (Pa. Super. 2004). In this case, there was no abuse of discretion in

the orphan’s court’s finding that Father was not credible.        In making the

credibility determination, the court explained that:

            In judging the credibility of the parties the Court considered
      several factors. Although the Mother could have simply denied
      that she ever received any correspondence or phone calls from
      the Father, she admitted to receiving two letters and talking with
      the Father over the phone on one occasion. The Mother also
      brought one of the letters to the hearing and offered it as an

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      exhibit, and she explained that she lost the other letter when she
      moved. She provided details of the phone call including that it
      turned into an argument for reasons that were logical in light of
      the Father’s family’s anger toward the Mother. The Father’s prior
      behavior evinced a lack of interest in providing for or even
      communicating with the Child and that pattern was consistent with
      the Mother’s testimony rather than the Father’s. For all these
      reasons, the Court made its decision based on the credible and
      competent testimony of the Mother.

      Not only is that explanation well-reasoned, it belies Father’s argument

that the orphan’s court did not consider his testimony in arriving at its

determination. Given this credibility finding, Father’s history of drug abuse

(methamphetamine and heroin), including an overdose, that he had not had

a visit with Child since July 2018, and that he has been incarcerated for a large

portion of her life, we discern no abuse of discretion in the court’s decision to

terminate Father’s parental rights to Child pursuant to section 2511(a)(1).

                                          B.

      We    next   address Father’s   claim     regarding   subsection   2511(b),

specifically, that it is in Child’s best interests that his parental rights be

preserved, given the vital relationship he has developed with her during her

lifetime.   We begin by noting that if 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. § 2511(b). The needs and welfare of the child include intangibles such

as love, comfort, security and stability.      See In re Adoption of K.M.G.,

supra at *8. A determination regarding the child’s needs and welfare requires


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consideration of the emotional bonds between the parent and child. See In

re E.M., 620 A.2d 481, 485 (Pa. 1993).

      Father claims that at the evidentiary hearing, when Mother was

questioned as to whether or not Child had exhibited any behavior that would

indicate that she missed Father, Mother replied, “Not recently.” (RR. 15a).

Father contends that this supports his position that it would hurt Child if his

parental rights were terminated. However, “Not recently” is not competent

evidence to show that Child would be harmed if Father’s parental rights were

terminated, absent a showing that it was within six months of the filing of the

termination proceeding.

      In any event, Mother’s husband is going to adopt Child, which will place

Child in a more stable environment. Mother credibly testified that Father has

provided no emotional care for Child and that Child currently exhibits no

behavior indicating that she misses Father. (See N.T. Hearing, 6/26/19, at

21, 27). The record is clear that Father has failed to stabilize his life for Child,

that he has engaged in persistent criminality and drug abuse, and that he has

made minimal effort to show any interest in the well-being of Child. After

review, we agree with the court’s conclusion that Child’s needs and welfare

can best be met by terminating the parental rights of Father.

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/2/2020




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