J-A14044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF: B.M.W.                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: C.N.                            :   No. 113 WDA 2020

                  Appeal from the Order Entered January 3, 2020
                 in the Court of Common Pleas of Fayette County
                   Orphans' Court at No(s): No. 6 ADOPT 2019


BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 07, 2020

        C.N. (“Mother”) appeals from the Order denying her Petition to

involuntarily terminate the parental rights of A.W. (“Father”) to B.W. (“Child”),

a female born in February 2015, pursuant to the Adoption Act, 23 Pa.C.S.A.

§ 2511(a)(1),1 in order to allow Mother’s husband, N.N. (“Stepfather”), to

adopt Child. We affirm.

        Mother and Father are the parents of Child. Mother and Father never

married. Mother resides in Mills Run, Pennsylvania, with her three daughters,

E.L.N. (born in July 2013),2 Child and C.R.N. (born in April 2018).        N.T.,


____________________________________________


1   Mother did not specifically cite to section 2511(b) in her Petition.

2 Stepfather adopted E.L.N. sometime after December 2018, after Mother had
the parental rights of E.L.N.’s biological father terminated. See N.T., 4/9/20,
at 22.
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4/9/20, at 10-11.   After Child’s birth in February 2015, Child resided with

Mother, Father, and E.L.N., until April 2015, when Father disappeared for four

months, until late August or the beginning of September 2015. Id. at 11-12.

Mother explained that, when Father left for work one day in August 2015, he

left behind all of his belongings, and did not make any phone calls to her for

four months. Id. at 13. Between late August 2015 and January 2017, Father

had only sporadic contact with Child. Id. at 13-14. Mother stated that Father

would speak with Child either over the telephone or, infrequently, in person,

but only when “he just felt like it.”   Id. at 14.   In December 2016, when

Mother’s house burned down, Mother was staying at her mother’s home, and

Father came to live there with Mother.     Id.   Mother testified that she and

Father would live together off and on for “just reasons.” Id. Mother testified

that Father did not visit Child when he was not living with Mother. Id.

      On April 6, 2017, Mother and Father permanently ended their

relationship. Id. at 14-15.    According to Mother, between April 2017 and

June 2017, Mother and Father did not reside together, and Father saw Child




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only three times: April 16, 2017;3 May 23, 2017; and June 11, 2017.4 Id. at

15. Father’s last visit or in-person contact with Child was on June 11, 2017,

when Child was two years old. Id. Mother stated that, after June 11, 2017,

Father would “go weeks” without contacting her. Id.       Since June 11, 2017,

Father did not give Child any Christmas cards or gifts, nor did he call her. Id.

at 20.5    Father had not attended or taken Child to any of her physician’s or

dentist’s appointments since that date, nor had he provided any meals for

Child, comforted Child when she was hurt, or tucked her into bed at night.

Id. at 18-19.


____________________________________________


3 Father and his two stepbrothers visited Child for Easter on April 16, 2017.
N.T., 4/9/20, at 19-20, 22-23. Father testified during the termination hearing
that after this visit, Mother told him that he could no longer enter her
grandfather’s property, where she lived, or she would call the police. Id. at
39-40.

4 The remaining two visits were at Father’s home, where he resided with his
grandparents. See N.T., 4/9/20, at 27. Mother admitted she told Father that
she would not permit him to come to her residence, but she would bring Child
to his residence. Id. On the two visits that Mother brought Child to Father’s
residence, Mother stayed for the entire visit. Id. Mother admitted having told
Father she feared that he would permanently take Child, as Father had
previously threatened to do so. Id. at 28. Additionally, Father testified at the
termination hearing that Mother did not disrupt the visits; he enjoyed his visits
with Child; and he would like to resume visits. Id. at 44.
5 Mother confirmed that she received one final telephone call form Father on
September 29, 2017, and that it was the last time she or Child spoke with
him. N.T., 4/9/20, at 15-16. At that time, Father asked Child if she wanted
to go to the zoo with him, and Mother allowed Child, who was two-and-a-half
years old at the time, to make her own decision. Id. at 16, 29-30, 42.




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       Father spoke with Michelle Kelly, Esquire (“Attorney Kelly”), in 2017

about filing a custody action. Id. at 38. Father filed a custody Complaint

regarding Child in November 2018, once he had sufficient funds to file a

Complaint. Id.

       Mother married Stepfather in October 2018. Id. at 11. Mother had an

active child support Order against Father between 2015 and the time of the

termination hearing.       Id. at 9, 24.6      In June 2018, Mother and Stepfather

received an insurance card for Child, and they were aware that Father also

provided health insurance for Child. Id.

       Mother filed the termination Petition on February 13, 2019.7 Therein,

Mother alleged that Child had lived with her since birth; Father has not seen

Child since June 11, 2017; Father had evidenced a settled purpose to

relinquish his claim to Child; and Father has refused or failed to perform

parental duties.     On April 9, 2020, the trial court conducted a termination

hearing. Michael Ford, Esquire (“Attorney Ford”), was present on behalf of


____________________________________________


6 At the time of the termination hearing, Mother was unemployed. N.T.,
4/9/20, at 11. Prior to the birth of E.L.N., Mother worked at a convenience
store. Id. at 25.

7 Mother and Stepfather first met with Attorney Kelly in November 2018, with
the intent to commence termination proceedings regarding E.L.N. and Child,
and for Stepfather to adopt both E.L.N. and Child. See N.T., 4/9/20, at 21-
22. In early December 2018, Mother received notice that Father had filed a
custody Petition regarding Child. Id.




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Child.8   Mother appeared with her counsel, Brent Peck, Esquire (“Attorney

Peck”), and testified on her own behalf. Father appeared with his counsel,

Sheryl Heid, Esquire (“Attorney Heid”), and testified on his own behalf. Father

also presented the testimony of his twin sister, K.W., (“Maternal Aunt”); his

father, R.W., Jr. (“Paternal Grandfather”); and his mother, S.L. (“Paternal

Grandmother”). Moreover, Father presented the testimony of Katherine Vozar

(“Vozar”), a psychologist who is a licensed professional counselor with PA

Professional Health Services. See N.T., 4/9/19, at 71-72.

       At the commencement of the termination hearing, Attorney Ford stated

that he had met with Child, who was four years old, and found her to be a

“happy little girl.” N.T., 4/9/19, at 7. Attorney Ford stated, “the only thing of

significance that [he] got out of her was that she refers to [Father] as [A., his


____________________________________________


8 Attorney Ford served as both a legal interest counsel and guardian ad litem
(“GAL”) for Child during the proceedings. See In re Adoption of L.B.M.,
161 A.3d 172, 174-74 (Pa. 2017) (plurality) (wherein our Supreme Court held
that 23 Pa.C.S.A. § 2313(a) requires that counsel be appointed to represent
the legal interests of any child in a contested involuntary termination
proceeding, and defined a child’s legal interest as synonymous with the child’s
preferred outcome); see also In re: Adoption of K.M.G., 219 A.3d 662, 669
(Pa. Super. 2019) (en banc) (holding that this Court has authority only to
raise sua sponte the issue of whether the trial court appointed any counsel for
the child, and not the authority to delve into the quality of the representation).
Neither party raises a challenge to Child’s representation, and there does not
appear to be a conflict between Child’s best interest and legal interests. See
In re D.L.B., 166 A.3d 322, 329 (Pa. Super. 2017) (stating that “separate
representation would be required only if the child’s best interests and legal
interests were somehow in conflict.”).




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first name], and she refers to her mom’s husband as dad.” Id. At the close

of the hearing, Attorney Ford reiterated that he found Child to be a “very

happy little girl,” and he thought that Child would be loved regardless of

whether Father’s parental rights were terminated. Id. at 88. Based on his

observations, Attorney Ford would have no concerns if Father’s parental rights

remained intact. Id.

      Mother testified that after Father called Child about a trip to the zoo in

September 2017, “[h]e continually[,] like[,] kept blowing up [her] phone,

calling it several times,” so she switched her telephone over to “do not disturb”

mode. Id. at 16; see also id. at 20-21 (wherein Mother testified that she did

nothing to prevent Father from performing his parental duties, except for

putting her telephone in “do not disturb” mode for a few hours on the one

occasion). Mother stated that Father had frozen her phone by calling her so

much that she could not answer it; she could not hang up; and she could not

do anything on it. Id. Mother testified that Father saw her family but never

asked about Child. Id. at 16, 17. Mother denied that she had ever blocked

Father from reaching her on Facebook Messenger.           Id. at 17.   She also

testified that she had never changed her telephone number, her address, or

her Facebook page, by which Father could have reached her.          Id. Mother

stated that Father also had the telephone number of her mother and both of

her grandparents. Id.




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       Child does not know Father, and refers to Stepfather as her father. Id.

at 19. Stepfather has steady employment, and wishes to adopt Child. Id.

Mother testified that Child has never had a close bond with Father and has

always clung to her. Id. at 31. In contrast, Mother stated that Child has an

“amazing” bond with Stepfather; “[i]t’s how a bond should be between a

father and child.” Id.

       Mother indicated that she was concerned that Father’s involvement in

Child’s life would threaten Child’s stability. Id. at 25. Mother believes that

reunification between Child and Father would hurt Child because Child is

engaged in family–based counseling for separation anxiety and post-traumatic

stress disorder (“PTSD”).9 Id. When Mother was living with Father, she took

care of many of Child’s needs. Id. at 26. She breastfed Child, who would not

nurse from a bottle, until October 2017, when Child was two-and-a-half years

old. Id. at 26. After separating from Father in April 2017, Mother told Father

that she was having difficulty because she was still breastfeeding Child. Id.

       Additionally,    Mother     does    not   find   it   acceptable   for   Father’s

grandparents to supervise visits between Father and Child.                Id.    Mother

testified that Father’s grandparents left during the last visit, which occurred



____________________________________________


9 Mother testified that Child has been undergoing treatment with therapists
for separation anxiety and PTSD. N.T., 4/9/20, at 32. Child has had therapy
two or three times a week for an hour-and-a-half, commencing in December
2018. Id. at 32-33. Father has not participated in Child’s therapy sessions.
Id. at 33.

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at their home.         Id.   Because of incidents that Mother has alleged had

happened on that day, Mother never again took Child to the home of Father’s

grandparents. Id. Mother acknowledged that the current custodial proposal

was that Father would leave Child with someone who would not leave the

home. Id. at 31. At the custody conference, Mother disclosed her concern

about Father seeing Child, and indicated that she did not want him involved

in Child’s life. Id.

      Father contested Mother’s allegations. Father testified that he resides

with his girlfriend and her mother in Pittsburgh. Id. 35, 46-47. He does not

pay rent, but assists with paying for bills and groceries. Id. at 46. Father

had been working at an energy construction company for two years, and had

previously been employed there for five years. Id. at 35, 45-46. He earns

$24 an hour. Id. at 46.

      Father testified that throughout their relationship, he would leave

Mother’s home when Mother would “kick [him] out” after arguments, and

would later move back in.          Id. at 36.   Father explained that Mother’s

grandparents did not like him, at times. Id. Mother would sneak him into

“the trailer,” and into her mother’s home. Id. Father and Mother “would see

each other all the time.” Id. When he saw Mother, he would also see Child.

Id. Father insisted that, when Mother sneaked him into her trailer a number

of times, it was so that he, Mother, and Child could be a family. Id. at 49.




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      Father acknowledged that Mother has done a lot for Child, including

breastfeeding and providing her with clothing. Id. at 36-37. When Father

lived with Mother, Child, and E.L.N., he paid child support, helped watch E.L.N.

and Child, would help cook or cooked meals, and/or would clean the dishes.

Id. He also assisted Mother in bathing the two children. Id.

      Father testified that, after the September 29, 2017, telephone call,

Father called and messaged Mother for a few weeks, but his calls would go

directly to voicemail, and Father did not visit with Child. Id. According to

Father, Mother blocked Father on her Facebook account, and he could not view

Mother’s profile or the profile of her family on Facebook. Id. After making

attempts for a few weeks, Father gave up trying to reach Mother, because she

was not answering him. Id. at 42-43. Father was aware that other members

of his family had attempted to get in touch with Mother. Id. at 43. Father

did not have Mother’s e-mail address.       Id.   Father does not communicate

using e-mail, but communicates via cellular telephone calls, text messages,

and Facebook messages. Id.

      Father would like for his entire family, consisting of Paternal Grandfather

and stepmother, Paternal Grandmother, his grandparents, his brother and

sister, and his cousins, to be involved in the visits. Id. Father’s twin sister,

who lives in Friendsville, Maryland, was present at the hearing. Id. Father’s

mother also lives in Friendsville. Id. at 45. Father’s grandparents, father and




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stepmother, and brother reside in the area local to Mother and Child and

provide family support for Father. Id.

      Father stated that toys make Child smile and giggle, and that, when last

he knew, Child’s favorite toy was Minnie Mouse. Id. at 50. Father was not

certain whether Child still had a Minnie Mouse toy. Id. He did not know the

name of Child’s pediatrician and dentist, or her favorite food or television

show. Id. Father described that, during his visits with Child, she was always

a happy little girl. Id. at 50-51. The visits went fine, and they would play

and interact with ease. Id. at 51.

      Next, Father presented the testimony of Paternal Aunt. Id. at 51-52.

She testified that, before Father and Mother separated, she had frequent

contact with Child, at least monthly at the homes of her parents. Id. at 53;

58 (wherein Paternal Aunt testified that she saw Child once a month for a total

of approximately twenty visits). Mother was present at the visits, which went

fine. Id. at 53, 58-59. After Father separated from Mother in April 2017, he

moved in with Paternal Aunt for approximately one year. Id. at 54. Father

would show Paternal Aunt his attempts to get in touch with Mother. Id. After

April 2017, Paternal Aunt never saw Child or Mother at her own home. Id.

Paternal Aunt was aware that Father had seen Mother and Child at her

grandfather’s home, but Paternal Aunt was not with them. Id. Paternal Aunt

would like to continue her involvement in Child’s life. Id.




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      Paternal Aunt testified that Father had moved in with her in July 2017

and lived with her for approximately one year while she was living in

Morgantown, West Virginia.     Id. at 56-57.    Paternal Aunt then moved to

Friendsville, and Father moved there for approximately one month. Id. at 57.

When Father lived with Paternal Aunt, he was working and paying half of the

rent with her, with his share amounting to $500 per month. Id. at 57. Father

was also paying half of the bills. Id. Thereafter, Father moved in with his

girlfriend and her mother in Pittsburgh. Id.

      Paternal Aunt last communicated with Mother in December 2017

regarding Child’s Christmas gifts. Id. at 58. Paternal Aunt testified that, when

she subsequently attempted to contact Mother, Mother’s Facebook account

blocked her, and she could not see Mother’s photographs or posts to Facebook.

Id. Mother was always present for the visits. Id. at 58-59.

      Paternal Aunt testified that, from her observation of the interaction

between Father and Child, Father was a great father with Child and E.L.N. Id.

at 59. Both children called Father “dad” and “daddy.” Id. Child and E.L.N.

crawled on Father. Id. He changed their diapers, bathed them, and was very

concerned about them. Id.

      Next, Father presented the testimony of Paternal Grandfather, who lives

with his wife and three children in Dunbar, Pennsylvania. Id. at 60. When

Father and Mother were in a relationship, Paternal Grandfather would see

Child approximately once a month, when Father and Mother would bring Child


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and E.L.N. to his home. Id. at 60-61. Paternal Grandfather observed that

Father was a very good father. Id. Father would take care of Child and play

with her. Id. He would change Child’s diapers and E.L.N.’s diapers. Id.

      The last time that Paternal Grandfather saw Child, Father and Mother

brought her to his home. Id. at 62. He was not aware of whether Father and

Mother were together as a couple or were separated at the time. Id. at 62.

He was uncertain as to whether the visit was before or after April 2017. Id.

at 62; 66-67 (wherein Paternal Grandmother testified that she last saw Child

sometime in 2017, prior to the separation of Father and Mother).          When

Father and Mother were together, Paternal Grandfather would send text

messages to Mother and speak with her over the telephone. Id. After Father

and Mother separated, the communication stopped. Id. Paternal Grandfather

sent Mother a text message asking if he and his family could see Child. Id.

Mother responded in a text message that she would think about it and let him

know. Id. Paternal Grandfather did not receive a response. Id. He believed

that legal action would be the only resolution, so he did not pursue the matter

with Mother. Id.

      Next, Father presented the testimony of Paternal Grandmother, who

lives in Friendsville, Maryland. Id. at 64-65. Prior to the separation of Father

and Mother, Paternal Grandmother would see Child when Father and Mother

would bring Child to her home or when they would meet at a restaurant. Id.

at 65.   Paternal Grandmother stated that Mother did not want to visit her


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home. Id. Prior to Father and Mother’s separation, Paternal Grandmother

had direct contact with Mother via Facebook posts and text messaging. Id.

Mother included on her Facebook posts photographs of Father with Mother and

Child, and stated that Father was a great father to Child.      Id. at 65-66.

Abruptly after the separation of Father and Mother, Paternal Grandmother

discovered she could not access Mother’s Facebook account, and she could no

longer see photographs of Child. Id. Subsequently, Paternal Grandmother

attempted to contact Mother but could not reach her. Id. On the day of the

hearing, Paternal Grandmother discovered that Mother had unblocked her,

and believed that Mother had done so because of the litigation. Id.10, 11

        By Order dated December 23, 2019,12 the trial court denied Mother’s

termination Petition:

             AND NOW, this 23th day of December, 2019, the [c]ourt
        hereby DENIES the Petition for Termination of Parental Rights




____________________________________________


10 Paternal Grandmother explained that her four stepchildren are Mother’s
cousins, and that Paternal Grandmother’s stepchildren and Mother share
common grandparents. N.T., 4/9/20, at 69. Paternal Grandmother stated
that there are many issues between the families. Id.

11 Father also presented the testimony of Vozar, the court-appointed
reunification counsel in the custody case. Vozar detailed her interactions with
Father, and her typical method of conducting reunification counseling with a
non-custodial parent.      See N.T., 4/9/20, at 70-84.        However, Vozar
acknowledged that her input in this case pertained only to the custody action,
and had no bearing on the termination proceedings. See id. at 82.

12   The Order was entered on the docket on January 3, 2020.

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       previously filed on February 21, 2019.[13]

            The Petition was filed on the alleged basis that Father had
       not made any inquiry about the [C]hild since September 22, 2017.

              However, the testimony made clear that Father continues to
       provide child support and health insurance for the [C]hild. Father
       testified that he continued to call Mother’s phone to inquire about
       the [C]hild for weeks after he was last able to speak with her, but
       that she did not answer his calls, and he eventually gave up. The
       [c]ourt credits this testimony.      In addition, Father testified
       (without rebuttal) that Mother’s own father (grandfather of the
       child) threatened him with physical harm if he was on the
       property. Father testified that he consulted an attorney, but that
       he did not have enough money to act until 2018.

             The record is clear that he filed for partial custody on
       November 28, 2018, and that an interim [O]rder granting him
       custodial rights was entered on January 29, 2019. It is also
       worthy of note that Mother married the prospective adoptive
       (step)father [i]n October [ ] 2018, just over one month before
       Father filed for custody, so there was no long-term history of a
       bonded relationship with a person capable of adopting. ….

             Under these circumstances, Mother cannot possibly
       establish, by clear and convincing evidence, that Father took no
       action during the six months preceding the filing of the Petition to
       [t]erminate, and she has not established that a termination would
       be in the [C]hild’s best interests. Instead, Father was clearly
       doing everything the law allowed him to do. The six[-]month
       period began on August 21, 2018[,] and ended when the Petition
       was filed on February 21, 2019. During that period[,] Father filed
       for and successfully litigated for custody. See In re: M.R.D., 145
       A.3d 1117 and In re: C.J.A.[, 204 A.3d 496 (Pa. Super. 2019)].
       It appears entirely possible that Mother’s Petition for [t]ermination
       was filed for an impermissible reason of obtaining an advantage


____________________________________________


13 In its Statement in Lieu of Opinion, the trial court noted, and the record
reflects, that Mother filed the termination Petition on February 13, 2019. See
Statement in Lieu of Opinion, 3/5/20, at 1 n.1 (acknowledging the
typographical error, but indicating that it is immaterial to the disposition of
the case).

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       in the custody case. See Wecht, J. concurring opinion in In re:
       M.R.D., supra.

Trial Court Order, 12/23/19, at 1-2 (footnote added).

       On January 21, 2020, Mother filed a pro se14 Notice of Appeal, along

with a Concise Statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b).

       Mother now raises the following issues for our review:

       A. Whether the trial court erred by failing to consider [whether]
       [Mother] was prejudiced by her prior counsel’s delay in filing the
       involuntary termination of parental rights Petition, which changed
       the trial court’s perception and analysis of the six[-]month period
       immediately preceding the Petition’s filing under 23 Pa.C.S.[A.]
       §[]2511(a)(1)[?]

       B. Whether the trial court erred in its legal conclusion that the
       mere filing of a Custody Complaint within the six-month period
       immediately preceding the termination Petition filing sufficiently
       established that [Father] “performed parental duties” according to
       clear judicial precedent under 23[]Pa.C.S.[A.] §[]2511(a)(1)[?]

       C. Whether the trial court erred by failing to consider [Father’s]
       significant abuse history, including inflicting abuse upon [Mother]
       and the minor [C]hild, lack of parental-bond [sic], and potential
       trauma [to] Child upon reunification, when assessing the
       developmental, physical, and emotional needs and welfare of
       Child, pursuant to 23 Pa.C.S.[A.] §[]2511(b)[?]


____________________________________________


14 On February 5, 2020, Allison Reynolds, Esquire, entered her appearance on
behalf of Mother and filed an appellate brief on Mother’s behalf on April 11,
2020. See Commonwealth v. Ellis, 626 A.2d 1137, 1139, 1141 (Pa. 1993)
(stating that there is no constitutional right to hybrid representation either at
trial or on appeal). On April 23, 2020, Attorney Heid filed in this Court a
Motion to Withdraw as counsel for Father. On April 28, 2020, this Court
granted the Motion, advising Father that he is now proceeding pro se with the
option of retaining substitute counsel. On May 4, 2020, Father filed a brief
with this Court prepared by Attorney Heid, dated April 30, 2020.

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      D. Whether the trial court erred by failing to consider [Father’s]
      severe drug addiction, as evidenced by testimony and a drug
      screen demonstrating he is an active drug user, when accessing
      [sic] the developmental, physical, and emotional needs and
      welfare of [ ] Child, and its impact on [the] emotional parent–
      child bond as required pursuant to 23 Pa.C.S.[A.] §[]2511(b) best
      interest analysis[?]

Mother’s Brief at 3-4.

      In an appeal from an order granting or denying a petition for termination

of 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.

In re T.C., 984 A.2d 549, 551 (Pa. Super. 2009) (citation omitted). “[A]n

abuse of discretion does not result merely because the reviewing court might

have reached a different conclusion.”    In re Adoption of S.P., 47 A.3d 817,

826 (Pa. 2012).       The burden is upon the petitioner to prove by clear and

convincing evidence that the asserted grounds for seeking the termination of

parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Moreover, “[t]he standard of clear and convincing evidence is defined as

testimony that is so clear, direct, weighty and convincing as to enable the trier

of fact to come to a clear conviction, without hesitance, of the truth of the

precise facts in issue.” Id. (citation and quotation marks omitted).




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      This Court may affirm the trial court’s decision regarding the termination

of parental rights with regard to any one subsection of section 2511(a), along

with consideration of subsection 2511(b). See In re B.L.W., 843 A.2d 380,

384 (Pa. Super. 2004) (en banc). Section 2511(a)(1) 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.

                                     ***

      (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), (b).

      With respect to subsection 2511(a)(1), our Supreme Court has held as

follows:

      Once the evidence establishes a failure to perform parental duties
      or a settled purpose of relinquishing parental rights, the court

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     must engage in three lines of inquiry: (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 Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).

     Further,

     [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 or her parental rights, to determine if the
     evidence, in light of the totality of the circumstances, clearly
     warrants the involuntary termination.

                                     ***

           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
     or her 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.

                                     ***

            Where a non-custodial parent is facing termination of his or
     her parental rights, the court must consider the non-custodial
     parent’s explanation, if any, for the apparent neglect, including
     situations in which a custodial parent has deliberately created
     obstacles and has by devious means erected barriers intended to
     impede free communication and regular association between the
     non-custodial parent and his or her child. Although a parent is
     not required to perform the impossible, he must act affirmatively
     to maintain his relationship with his child, even in difficult
     circumstances. A parent has a duty to exert himself, to take and
     maintain a place of importance in the child’s life.

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Id. 856 A.2d at 854-56 (citations omitted).

      After we determine that the requirements of section 2511(a) are

satisfied, we proceed to review whether the requirements of subsection

2511(b) are satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009

(Pa. Super. 2008) (en banc).       This Court has stated that the focus in

terminating parental rights under section 2511(a) is on the parent, but it is

on the child pursuant to section 2511(b). Id. at 1008.

      Regarding section 2511(b), our Supreme Court has explained 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.” In
      re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620
      A.2d 481, 485 (Pa. 1993)], this 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. In re K.M., 53 A.3d at
      791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

      We will address Mother’s first and second issues together, as both relate

to the trial court’s consideration of section 2511(a)(1).   In her first claim,

Mother argues that Father had not performed parental duties for over 14

months, and that he simply filed a custody Complaint within the 6 months

prior to the filing of her termination Petition. Mother’s Brief at 24; see also

                                    - 19 -
J-A14044-20


id. (explaining that Mother had sought counsel in November 2018, after 14

months of no contact by Father, but the filing was delayed by counsel).

Additionally, Mother claims that Attorney Kelly failed to engage in proper

conflict checking practices, which resulted in further delay. Id. at 25; see

also id. (alleging that when Attorney Kelly attempted to serve Father with the

termination Petition at a custody mediation, Father stated that he had

previously met with Attorney Kelly to discuss custody).

      In her second issue, Mother asserts that Father’s filing of a custody

Complaint does not satisfy the requirement that he perform parental duties

under section 2511(a)(1). Id. at 26. According to Mother, Father has not

taken any affirmative steps to assert his parental interests, and did not

attempt to contact or visit with Child. Id. at 28-29. Mother claims that Father

only contacted her a “handful of times” in 2017, and that he never inquired

about Child’s well-being or attempted to send cards or gifts. Id. at 28-29, 41.

Mother avers that she did not file the termination Petition simply to thwart

Father’s custody case. Id. at 37. Mother also claims that she “acted to protect

Child from the trauma of reunification with Father due to his abandonment,

history of violence against Mother and children, and extended history of

drug[]use.”   Id.   Further, Mother asserts that the GAL did not adequately

consider Child’s bond with Stepfather. Id. at 43, 45.

      The trial court addressed Mother’s first two issues together, as follows:

           Mother filed her Petition on February 13, 2019 , alleging that
      Father had “evidenced a settled purpose of relinquishing parental

                                    - 20 -
J-A14044-20


     claim and has refused to perform parental duties” for “a period of
     at least six months immediately preceding the filing of this
     petition.” However, it was established beyond doubt that Father
     had filed a [C]omplaint for partial custody on November 28, 2018,
     and had obtained an Order granting him custodial rights on
     January 29, 2019. Both of those events occurred during the “six
     months immediately preceding the filing of this petition.”

           Moreover, [the trial court] found that Mother actively
     sabotaged Father’s attempts to remain in the [C]hild’s life by
     cutting off communications and by having her father threaten
     [Father] to stay away. In addition, the [trial court] found that
     Mother did not carry her burden of proving that the [t]ermination
     would be in the best interests of the [C]hild, largely because she
     married the proposed adoptive father only about a month before
     the custody [C]omplaint was filed.

                                      ***

          In the Order dated December 23, 2019, [the trial court]
     addressed several of these issues and hereby incorporates that
     Order by reference.

            As far as the fact that she filed her Petition after Father first
     filed for custody, her explanation or excuse for the delay in filing
     is irrelevant. The six[-]month period runs backwards from the
     date the Petition to [t]erminate was actually filed. Moreover, her
     explanation or excuse is not credible, as her previous counsel
     could not have been simultaneously working on custody for Father
     and termination for Mother. Counsel was not presented as a
     witness. Finally, the [trial court’s] decision to deny termination
     was not based on Mother filing the termination [P]etition to obtain
     an impermissible advantage in the custody case[;] the
     undersigned merely commented that it was “entirely possible”
     that it was her motive.

           As far as her assertion that Father could have texted her to
     continue communication with the [C]hild, [the trial court] believes
     that to be irrelevant as well, considering all of the other facts and
     circumstances in this case. There was credible testimony from
     Father and at least two other witnesses in his family that they
     were all “blocked” from communications with Mother. [The trial
     court] finds Mother’s testimony to the contrary to be incredible.
     Also, Mother claims Father had no communication for “over two

                                     - 21 -
J-A14044-20


      years,” which is simply hyperbole. Accepting as true her assertion
      that she cut off Father’s communication with the [C]hild on
      September 22, [sic] 2017, Father filed for partial custody on
      November 28, 2018, a period of 14 months and 6 days. As noted
      above, the Petition to [t]erminate was not filed until February 13,
      2019, some two[-]and[-]one-half months later. It is worthy of
      note that the conversation that resulted in the “blocking” of
      communications with Father and his family was Father asking to
      take the [C]hild to the zoo – and that Mother admits that she left
      the decision on whether or not to go to the two[-]year[-]old[-]
      child!

Trial Court Statement in Lieu of Opinion, 3/5/20, at 1-4.

      The record supports the trial court’s findings. Here, Father, Paternal

Grandmother, and Paternal Aunt all testified that Mother had blocked them

from contacting her for many months.          Additionally, Father testified that

Mother told him that, if he attempted to visit the property owned by her

grandfather where she and Child resided, her father would call the police and

have Father arrested. The trial court found that these matters were obstacles

created by Mother to prevent Father from having contact with Child. See In

re: B.N.M., 856 A.2d at 855-56. After a careful review of the record, we

conclude that the trial court’s credibility and weight determinations are

supported by the testimony in the record. See In re T.C., supra. Discerning

no abuse of the trial court’s discretion, we will not disturb these findings.

      Because Mother failed to support her allegation that termination was

appropriate under section 2511(a)(1), the trial court did not need to address




                                     - 22 -
J-A14044-20


whether Mother satisfied her burden under section 2511(b).15 Nevertheless,

we will review Mother’s allegations concerning section 2511(b)—set forth in

the third and fourth issues—together, as they are related. In her third issue,

Mother contends that the trial court failed to consider Father’s history of abuse

in addressing Child’s emotional needs and welfare pursuant to section

2511(b). Mother’s Brief at 57. Additionally, Mother cites Father’s issues with

“instability, a lack of income, drug addiction dating back to high school, and a

history of criminal behavior that supported termination.” Id. at 58.

       In her fourth issue, Mother asserts that the trial court did not

appropriately consider Father’s history of drug addiction. Id. at 60. Mother

believes that Father’s drug use affects his ability to form an emotional bond

with Child. Id. at 60-61.

       The trial court addressed Mother’s third and fourth issues as follows:

             Mother’s claim of “significant abuse” also involves matters
       that are either off the record, or that Mother has exaggerated.
       The only reference in the record that could suggest any “abuse” is
       an off-hand reference to an arrest of Father that occurred during
       or after a visit with Mother. There was no testimony as to what
       the arrest was for. Mother’s bias is clear, and it adversely impacts
       the credibility of her testimony. It appears she will say almost
       anything to “win.”

             Mother's allegation concerning “[Father’s] severe drug
       addiction” falls in the same category, as the only reference in the
       record is in the testimony of the reunification counselor who
____________________________________________


15Thus, we need not address Mother’s contention that Father’s filing of a
custody Complaint was insufficient to amount to contact by Father with Child
during the six-month period preceding her filing of her termination Petition
against Father, and the cases she cites in her brief for this issue.

                                          - 23 -
J-A14044-20


      mentioned that Father tested positive for opioids on one occasion,
      and[,] even though he told her it was a prescribed medication,
      she recommended random drug testing. There was no positive
      testimony concerning illegal drug use of any kind, much less
      “severe drug addiction.”

            There may have been more that could have been elicited on
      both subjects, but no such additional evidence was presented, and
      Mother is the party with the burden of proof.

Trial Court Statement in Lieu of Opinion, 3/5/20, at 4-5.

      Upon review, we conclude that the trial court’s credibility and weight

determinations are supported by the record. See In re T.C., supra. We

perceive no error or abuse of the trial court’s discretion with the finding that

Mother failed to sustain her burden of proving that termination of Father’s




                                     - 24 -
J-A14044-20


parental rights is in the best interests of Child pursuant to section 2511(b).16

Accordingly, we affirm the trial court Order on the basis of the discussion in

the trial court’s Statement in Lieu of Opinion, supra.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2020




____________________________________________


16 We agree with the trial court that Mother did not present sufficient evidence
at the hearing to establish that the termination of Father’s parental rights
pursuant to section 2511(b) is in the best interest of Child. Mother’s
contention that the trial court improperly and solely found that section
2511(b) was not met because of her marriage to Stepfather within the six-
month period preceding the filing of the termination petition, one month
before Father filed his custody Complaint, is not borne out by the record. See
Mother’s Brief at 15. The trial court’s comment about the recentness of
Mother’s marriage to Stepfather appears to be only an observation on the part
of the trial court as to Mother’s motivations and credibility with regard to her
allegations against Father. The comment relates to whether the termination
of Father’s parental rights would be in Child’s best interests, in general, and
is not part of a section 2511(b) analysis. See Trial Court Statement in Lieu
of Opinion, 3/5/20, at 1-5.

                                          - 25 -
