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[U] In re Adoption of M.J.S.

Superior Court of Pennsylvania

February 10, 2014

IN RE: ADOPTION OF M.J.S. APPEAL OF: D.E.P., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order, June 28, 2013, in the Court of Common Pleas of Lawrence County Orphans' Court Division at No. 20038 OF 2012, O.C.-A

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND WECHT, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

D.E.P. ("Father") appeals the order of the Court of Common Pleas of Lawrence County that terminated his parental rights to M.J.S. ("Child") pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b) of the Adoption Act. We affirm.

The trial court has summarized the facts and procedural history as follows:

On March 27, 2010, [S.B.] (hereinafter, "Natural Mother") gave birth to a baby girl (hereinafter, [Child]). At the time of [Child's] birth, the Natural Father/Respondent, [D.E.P.] (hereinafter, "[Father]"), was serving a sentence of eleven and one-half months to twenty-four months, less one day, following a guilty plea to the charges of Aggravated Indecent Assault, in violation of 18 Pa.C.S.A. §3125(7) and Sexual Abuse of Children-Dissemination of Photos, in violation of 18 Pa.C.S.A. §6312(c)(1).[Footnote 1] Prior to [Child's] birth, Natural Mother agreed to place the child for adoption, and Natural Mother consented to the baby's being adopted by the Petitioners. Natural Mother believed that the adoption would be in the baby's best interests as [Father] was incarcerated and she was unable to care for the baby herself. Initially, Natural Mother kept the [Father] informed about the pregnancy, but in December 2009, Natural Mother ended her relationship with [Father] after leaving the residence of [K.B.], [Father]'s mother, where [Father] lived with Natural Mother. Communication between Natural Mother and the [Father] ended, and Natural Mother began to make arrangements for the baby to be adopted by the Petitioners.
Immediately following the birth of [Child] on March 27, 2010, Natural Mother placed [Child] in Petitioners' custody. On April 19, 2010, [Father] was released from prison. At the time of his release, [Child] remained in Petitioners' custody. On May 13, 2010, [Father] initiated a custody action in the Court of Common Pleas of Lawrence County. On May 26, 2010, Petitioners filed a Petition to Intervene in the custody action. The Court was advised of [Father]'s prior criminal history during the presentation of the Petition to Intervene. Pursuant to 23 Pa.C.S.A. §5329, then 23 Pa.C.S.A. §5303[footnote omitted], this Court was precluded from awarding [Father] any form of partial custody prior to an expert evaluation. Consequently, [Child] remained in the Petitioners' custody pending a hearing on the Petition to Intervene. After a full evidentiary hearing, this Court granted the Petitioners' request to intervene on September 28, 2010.
Following a custody conciliation conference in November 2010, [Father] was required to meet with a qualified professional, Dr. Douglas Bogdan, to address [Father]'s prior criminal convictions. It was the obligation of the Court to make a determination of whether [Father] posed a threat to the minor child prior to awarding [Father] any form of custodial rights. See 23 Pa.C.S.A. §5329.
[Father] began counseling with Dr. Bogdan on November 27, 2010, and he continued counseling through December 2012. After two evidentiary hearings, held on October 14, 2011 and October 12, 2012, this Court was satisfied that [Father] no longer posed a threat to the minor child, and scheduled the custody action for a trial. Prior to reaching the merits of [Father]'s initial Custody Complaint, the Petitioners filed the underlying Petition to Terminate Parental Rights. Hearings on the Petition to Terminate the Natural Father's Parental Rights were held on March 15, 2013 and April 12, 2013.
[Footnote 1] [Father] was paroled on October 12, 2005. On February 25, 2010, [Father]'s sentence of probation was revoked, and he was resentenced on the aforementioned charges. While [Father] was serving his term of probation, the subject minor child was conceived.

Trial court opinion, 6/28/13 at 1-4.

The trial court entered its order terminating Father's parental rights on June 28, 2013, and this appeal followed. Father raises two issues for our consideration:

1. Did the trial court abuse its discretion in terminating D.E.P.'s parental rights pursuant to 23 Pa.C.S.[A.] Section 2511(a)(1)?
2. Did the trial court commit an error of law in failing to bifurcate the termination proceedings?

Father's brief at 5.

The standards governing our review of an order terminating parental rights are well settled:

When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the 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 R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009), quoting In re S.H., 879 A.2d 802, 805 (Pa.Super. 2005), appeal denied, 586 Pa. 751, 892 A.2d 824 (2005). The burden is upon the petitioning person or agency to prove by clear and convincing evidence that its asserted grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d at 276.

Moreover, we have explained:

[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., quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super. 2003). The trial court is free to make all credibility determinations, and may believe all, part, or none of the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004). If the findings of the trial court are supported by competent evidence, 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). This court may affirm the trial court's termination of parental rights with regard to any one subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc).

Instantly, the prospective adoptive parents ("Petitioners") sought termination of Father's parental rights under Subsections (a)(1) and (a)(2) of the Adoption Act, which provide, in pertinent part:

§ 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 ...

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