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J.H. AND J.H. v. E.D.W. AND D.L.W. (06/15/82)

SUPERIOR COURT OF PENNSYLVANIA


argued: June 15, 1982.

J.H. AND J.H., HIS WIFE, APPELLANTS,
v.
E.D.W. AND D.L.W., HIS WIFE

Nos. 1033 Pittsburgh, 1981, 1034 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas of Washington County, Orphan's Court Division, at No. 63-80-658

COUNSEL

Patrick J. Rega, Charleroi, for appellants.

James W. Haines, Jr., Monongahela, for appellees.

Brosky, Johnson and Montgomery, JJ.

Author: Brosky

[ 306 Pa. Super. Page 281]

This appeal arises from the denial of a petition to terminate parental rights brought by J.H. and J.H., appellants, against E.D.W. and D.L.W. The question raised by the appellants is simply that the trial court erred in failing to grant the petition to involuntarily terminate parental rights because the record contained evidence sufficient to justify termination of those rights under the Adoption Act of 1970.*fn1 We do not agree. Accordingly, we affirm the decision of the trial court.

[ 306 Pa. Super. Page 282]

The record reveals that the child, J.W., was several weeks premature on August 7, 1977. Shortly thereafter, in September of 1977, the child was cared for by the natural mother's aunt, J.H. The mother claims the aunt offered to care for the child for a period of time while she recuperated from the pregnancy. The aunt claims she was asked by the mother to care for the child. During the following 2 1/2 years, the child was cared for by the aunt most of the time. The mother claims that she desired to care for her child but that her own physical and emotional problems prevented her from doing so. The aunt claimed the mother abandoned the child, made infrequent efforts to see her child and that the child only saw his parents at the aunt's initiative. The parents claim that they made frequent inquiries about the child's condition and that they expressed an interest in and affection toward their child. We need not review the record in further detail because it consistently reveals two seemingly unrelated accounts of the parents' relationship with their child.*fn2 We view the issue as one of credibility. Simply put, the trial court believed the parents.

In In Re Adoption of B.D.S., 494 Pa. 171, 176, 431 A.2d 203, 206 (1981), our Supreme Court said:

Our standard of review in cases of involuntary termination of parental rights is well-settled. We will not reverse

[ 306 Pa. Super. Page 283]

    a decree of the Orphans' Court if it is supported by competent evidence. In Re L.A.G., 490 Pa. 85, 415 A.2d 44 (1980). Furthermore, 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." Matter of Kapcos, 468 Pa. 50, 54, 360 A.2d 174, 176 (1976) . . . .

The essence of appellant's argument is that she did, contrary to the Orphans' Court finding, sustain her burden of proof and that appellee's testimony was not believable. This contention is totally without merit. The trier of fact is the sole judge of credibility. In re Green, 486 Pa. 613, 406 A.2d 1370 (1979), and we will not usurp this function of the hearing court.

We will not disturb the trial court's decision as to credibility and because the appellants argue essentially that their evidence was more credible than that given by the appellees, we are obliged to affirm the order of the trial court.*fn3


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