Fred J. Sentner, Canonsburg, for appellant.
Arnold M. Epstein, Neighborhood Legal Services, Pittsburgh, Richard P. Gilmore, Washington, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Nix, J., concurs in the result. Packel, J., did not participate in the decision of this case.
Appellant, J.S., natural mother of S.H. (son), appeals from the decree of the Orphans' Court Division of Court of Common Pleas refusing to terminate the parental rights of appellee W.H., natural father of the son.*fn1 Appellant petitioned the orphans' court alleging that the father "for a period in excess of six (6) months, has refused and failed to perform parental duties with respect to said child and by his conduct, has evidenced a settled purpose of relinquishing parental claim to the child." See the Adoption Act, Act of July 24, 1970, P.L. 620, § 311(1), 1 P.S. § 311(1) (Supp.1977). The orphans' court denied the petition on the grounds that "the testimony indicates that the father has affirmatively performed his parental responsibilities as best he could do under the circumstances," and the "totality of circumstances in this case establishes the father wanted to remain as a positive force in his son's life but was thwarted in his efforts by his former wife, her new husband, and her mother." We affirm.
A parent will not be found to have "failed" or "refused" to perform parental duties, or to have "evidence[d] a settled purpose of relinquishing parental claim to the child," id., so long as he or she "use[s] all available
resources to preserve his parental relationship" and "'exercise[s] reasonable firmness "in declining to yield to obstacles" . . . .'" Adoption of M.T.T., 467 Pa. 88, 96, 354 A.2d 564, 568 (1976), quoting Adoption of McCray, 460 Pa. 210, 216, 331 A.2d 652, 655 (1975), and Adoption of J.R.F., 27 Somerset L.J. 298, 304 (Pa.C.P. Orph.Div.1972).
Appellant contends that the findings of the orphans' court are not supported by evidence in the record, the evidence believed by the orphans' court was not credible, and the facts found do not justify the conclusion that the father used all available means to preserve his relationship with his child.
The findings of the orphans' court, supported by competent evidence, "must be sustained unless the court abused its discretion or committed an error of law." In re William L., Pa. , , 383 A.2d 1228, (1978); accord, e. g., Wertman Estate, 462 Pa. 195, 340 A.2d 429 (1975); Estate of Lanning, 414 Pa. 313, 200 A.2d 392 (1964). We must accept as true all evidence in the record supporting the findings of the court and reasonable inferences therefrom. E. g., In re William L., Pa. at and n. 12, 383 A.2d 1228 and n. 12; see Kay v. Kay, 460 Pa. 680, 334 A.2d 585 (1975). Conflicts in the testimony are to be resolved by the trier of fact, who is the sole judge of credibility. E. g., Garges Estate, 474 Pa. 237, 378 A.2d 307 (1977); Wertman Estate, supra. This Court may not disturb a decree of the orphans' court based upon findings supported by the record unless the orphans' court applied an incorrect legal standard. See, e. g., In re William L., supra; Garges Estate, supra; cf. Girard Trust Bank v. Sweeney, 426 Pa. 324, 330, 231 A.2d 407, 411 (1967) (decision reversed where facts properly found did not meet applicable legal standard).
The orphans' court found:
"The petitioner [J.S.] is the natural mother of the subject of this litigation, the child, [S.H.]. The respondent, [W.H.] is the natural father of [S.H.]. [S.H.] was born on January 7, 1971, and his natural parents were ...