J-S64029-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF K.S., A MINOR 

CHILD

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: N.S., NATURAL MOTHER

No. 1016 WDA 2014

Appeal from the Order Entered May 29, 2014

In the Court of Common Pleas of Fayette County

Orphans' Court at No(s): 9 ADOPT 2014

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 22, 2014

N.S. (“Mother”) appeals from the order involuntarily terminating her 

parental rights to K.S. (born in January of 2005) (“Child”), pursuant to 23 

Pa.C.S. § 2511 (a)(1) and (b). We affirm. 

This appeal arises from a petition requesting the court to order the 

involuntary termination of Mother’s parental rights to Child. The petition 

was filed by N.J.M. and her husband, J.N.L. (“Paternal Aunt and Uncle”), 

with whom Child has lived since November 2, 2011. Parental Aunt and 

Uncle seek to adopt Child. A hearing was held on May 27, 2014. The 

orphans’ court’s opinion and order, dated May 27, 2014, provides an 

extensive factual and procedural history of this case. In that document, the 

court states:

1. [A.M.] is the biological father of [Child], and he has executed 

a consent to adoption, wherein he consents that the minor child 

will be adopted by his sister, [N.J.M.], and her husband, [J.N.L.].

2. [Child] is presently nine years of age, and she is the oldest 

child of [Mother’s] five children. In addition to [Child], the minor 
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children of [Mother] are [L.S.], born June [of] 2007; [P.S.], born 

August [of] 2008; [L.L.], born December [of] 2010; and [W.S.], 

born December [of] 2013. 

3. [Mother] has custody of her youngest child, [W.S.], and her 

other three minor children are in the custody of their 

grandmother. 

4. Fayette County Children and Youth Services (hereinafter 

“CYS”) has had involvement with [Mother] and her children since 

December 14, 2010. 

5. CYS accepted a case for service, which involved [Child] and 

her three siblings, on February 16, 2011. 

6. On October 3, 2011, [Child] was removed from the care of 

[Mother].... 

7. Although services were offered to [Mother] through CYS in 

2011, [Mother] failed to comply with a permanency plan for 

reunification with her minor children, and on April 24, 2012, the 

Honorable Nancy D. Vernon authorized CYS to terminate its case 

involving [Child], and Judge Vernon's Order further awarded 

legal and physical custody of [Child] to [Paternal Aunt]. 

8. [Child] has been in the custody of [Paternal Aunt and Uncle] 

since November 2, 2011. At the time [Paternal Aunt and Uncle] 

assumed custody of [Child], she had significant medical (missed 

immunizations and head lice), dental (six rotted teeth down to 

the gum line, with infection) and emotional (fear of being left 

alone and alleged sexual abuse) challenges. [Paternal Aunt and 

Uncle] took immediate action to correct the medical and dental 

issues and [Child’s] counseling sessions are ongoing. 

9. [Mother] has struggled with drug addiction since 2009; and 

she served time in jail from August 1, 2012, through March 5, 

2013, after entering a guilty plea to felony charges. 

10. The last contact between [Mother] and [Child] was July, 

2012. 

11. Upon her release from jail in 2013, [Mother] contacted 

[Paternal Aunt] in an attempt to establish visits with [Child]. 

[Paternal Aunt] informed [Mother] that visits would have to be 
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facilitated through the Crime Victims Center in Uniontown, 

Fayette County, Pennsylvania. 

12. The testimony is undisputed that after June, 2013, there 

were no attempts by [Mother] to foster any relationship 

whatsoever with [Child]. Specifically, [Mother] did not call to 

inquire about her daughter, she did not send cards or gifts, nor 

did she consult with any legal advisor or agency concerning 

[Child]. 

13. Attorney Marianne Miele, guardian ad litem for [Child], 

reported to the Court that [Child] is doing well in her home with 

the [Paternal Aunt and Uncle]. [Child] talks excitedly about her 

family and the gatherings she enjoys with her family. [Child’s] 

developmental, physical, and emotional needs are being met by 

the [Paternal Aunt and Uncle], and an adoption will be in the 

best interest of the child. 

14. [Paternal Aunt and Uncle] confirmed their present intention 

to adopt [Child].

Orphans’ Court Opinion (OCO), 5/27/14, at 1-4. Based upon these facts, 

the court ordered the termination of Mother’s parental rights to Child. 

Mother filed a timely notice of appeal and a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). 

She raises the following issue:

Did the [t]rial [c]ourt err by abusing its discretion in terminating 

the natural parent’s rights as petitioner failed to sustain its 

burden of proof by clear and convincing evidence to show that 

the parent evidenced a settled purpose of relinquishing a settled 

claim to the child or refused to perform parental duties? 

Mother’s brief at 6. 

Our standard of review regarding orders terminating parental rights is 

as follows:

When reviewing an appeal from a decree terminating parental 

rights, we are limited to determining whether the decision of the 
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trial court is supported by competent evidence. Absent an abuse 

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

for the trial court’s decision, the decree must stand. Where a 

trial court has granted a petition to involuntarily terminate 

parental rights, this Court must accord the hearing judge’s 

decision the same deference that we would give to a jury 

verdict. 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 S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, 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. 

Id. at 806. We have previously stated:

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.” 

In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

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

The termination of parental rights is controlled by 23 Pa.C.S. § 2511. 

Under this statute, the trial court must engage in a bifurcated process in 

which it initially focuses on the conduct of the parent under section 2511(a). 

See In the Interest of B.C., 36 A.3d 601 (Pa. Super. 2012). If the trial 
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court determines that the parent’s conduct warrants termination under 

section 2511(a), it must then engage in an analysis of the best interests of 

the child under section 2511(b). See id. Here, the court terminated 

Mother’s parental rights under section 2511(a)(1) and (b). These pertinent 

parts of the statute provide:

(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.

23 Pa.C.S. § 2511(a)(1), (b). 

We have interpreted section 2511(a)(1) as follows:

To satisfy the requirements of 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.

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008).
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Regarding the definition of “parental duties,” this Court has stated the 

following:

[Our] Supreme Court has defined parental duty as follows:

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 court 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 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 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.

* * *

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 the duty to exert 

himself, to take and maintain a place of importance in the child’s 

life.
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Thus, a parent’s basic constitutional right to the custody 

and rearing of his or her child is converted, upon the failure to 

fulfill his or her parental duties, to the child’s right to have 

proper parenting and fulfillment of his or her potential in a 

permanent, healthy, safe environment. A parent cannot protect 

his parental rights by merely stating that he does not wish to 

have his rights terminated. 

In re: B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (quotation marks and 

citations omitted).

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 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 the Matter of the Adoption of Charles E.D. M., II, 708 A.2d 88, 91-

92 (Pa. 1998). 

Initially, we note that the argument section of Mother’s brief provides 

pertinent citations to case law involving the termination of parental rights 

and an explanation of this Court’s standard and scope of review. However, 

the entirety of Mother’s argument consists of the following: 

The Trial Court Transcript reflects that Mother’s efforts to both 

see and parent her child were frustrated by the Aunt. (N.T. at 

26 through 30). Furthermore, after losing her daughter to 

Children and Youth Services of Fayette County, the mother had 

righted her life and her conduct by passing drug tests, securing 

housing, maintaining her sobriety, obtaining a sponsor, and 

further raising a family of her own. (N.T. at 16 through 19 and

29).

Mother’s brief at 11. 

Pertinent to Mother’s argument, the orphans’ court explained the 

following:
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After [Mother] was released from jail on March 5, 2013, 

she made minimal attempts to see [Child]. After June, 2013, 

the testimony is clear that she made no efforts whatsoever to 

see her daughter or to establish any maternal bond with her 

daughter. Therefore, not only for the six months immediately 

preceding the filing of the petition, but for the past several 

years, [Mother] has not maintained a parental bond with [Child]. 

Since [Child] was removed from the custody of [Mother] on 

October 3, 2011, [Mother] succumbed to drug addiction and 

offered no parental support or interest toward [Child]. [Mother] 

has not offered even the smallest token of love or support, 

directly or indirectly, to [Child], and her phone calls in June of 

2013, do not display any intention to maintain or promote any 

significant role in the life of her child.

[Mother] asserts that she stopped making phone calls to 

see [Child] because her calls were not being returned, and she 

just kept leaving voicemails. However, this Court does not find 

that [Paternal Aunt and Uncle] have obstructed the potential for 

a relationship between [Mother] and [Child]. If [Mother] had a 

settled purpose of maintaining a relationship with [Child], she 

could have continued to make calls, or send letters, and she 

certainly could have sought legal advice in an effort to assert her 

parental rights. [Mother] has not made any efforts whatsoever 

since June, 2013, to preserve any relationship with [Child].

OCO at 5. Additionally, the court found credible the testimony provided by 

Paternal Aunt and Uncle, noting their “eagerness and sincerity” in regard to 

their desire to adopt Child. Id. at 6. Also, based upon the testimony of 

Child’s guardian ad litem, the court found Child to be “doing well” in Paternal 

Aunt and Uncle’s home and that Child’s best interests would be “promoted 

by the proposed termination in preparation for adoption.” Id. 

Our review of the record (particularly, noting the testimony cited by 

Mother) reveals that the court’s findings are supported by clear and 

convincing evidence. Moreover, we defer to the trial court’s determinations 
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of credibility, despite what we deem to be a request by Mother to re-find 

facts and re-weigh evidence in her favor. We conclude that the court did not 

abuse its discretion nor err as a matter of law in its application of section 

2511(a)(1) and (b). Accordingly, we affirm the court’s order terminating 

Mother’s parental rights to Child. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/2014