In Re: I.B.T.L., Appeal of: S.L. ( 2021 )


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  • J-A03015-21
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN RE: I.B.T.L., A MINOR                   :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    APPEAL OF: S.L., MOTHER                    :
    :
    :
    :
    :
    :   No. 1230 MDA 2020
    Appeal from the Order Entered September 9, 2020
    In the Court of Common Pleas of Northumberland County
    Orphans’ Court at No(s): ADOPTEE 69-2018
    BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
    MEMORANDUM BY MURRAY, J.:                                 FILED APRIL 09, 2021
    S.L. (Mother) appeals from the order involuntarily terminating her
    parental rights to her daughter, I.B.T.L. (Child), born in March of 2013.1 The
    termination petition was filed by R.D., who stood in loco parentis to Child, and
    simultaneously filed a report of intention to adopt. After careful consideration
    of both the record and pertinent legal authority, we affirm.
    FACTUAL AND PROCEDURAL HISTORY
    Mother gave birth to Child while incarcerated at the State Correctional
    Institution (SCI) at Muncy.        N.T., 7/8/19, at 18.   Days after Child’s birth,
    Mother consented to Lock Haven Hospital discharging custody of Child to R.D.,
    a woman Mother met through the Lighthouse Prison Ministries program. See
    ____________________________________________
    1 In the same order, the orphans’ court involuntarily terminated the parental
    rights of Child’s father, L.T., who has not appealed.
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    id. at 18, 46; see also Petition for Termination, 9/24/18, Exhibit A.              The
    program required R.D. to take Child to the prison to see Mother every other
    week, and to return Child to Mother upon her release. Id. at 20, 59. In April
    of 2014, Mother was released to a halfway house in Philadelphia, where she
    remained for approximately six months. Id. at 19, 39-40. Mother testified
    that at the time of her release, she “wasn’t in a position to take” Child, and
    she “explained that to” R.D. Id. at 20. R.D. testified it was not her intention
    to retain custody of Child after Mother’s release in April 2014, but she initiated
    a custody action at that time because Mother “could not give any information
    as to what she was doing with [Child]” and “had no plan for [Child] when she
    got out.” Id. at 60-62, 75.
    On April 30, 2014, the court in the custody matter2 issued an order
    providing that “Mother shall have supervised periods of physical custody,
    supervised by [R.D.], no less than four hours every other Sunday, with the
    parties   alternating    the   location    of   the   visits   between   Sunbury   and
    Philadelphia.” Id. at 93.
    The custody court modified the April 30, 2014 order in an interim order
    dated July 1, 2014. Id. The interim order continued to grant Mother partial
    ____________________________________________
    2 The orphans’ court had no involvement in the custody litigation, and was not
    sitting in the Northumberland County Court of Common Pleas at that time.
    The orphans court subsequently and accurately stated, “that’s not what’s in
    front of me at this point. That was dealt with by the [c]ourt. Rulings were
    entered. Orders were entered. The issue before the [c]ourt today is should
    [Mother’s] rights be terminated?” N.T., 8/25/20, at 11.
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    physical custody, supervised by R.D. for no less than four hours every other
    Sunday, but specified that the visits were to occur at the Burger King in
    Sunbury. Id. The order also required R.D. and Mother to provide one another
    with “current address and telephone number and in the event of any change
    shall notify the other party of the same within three (3) days of such change.”
    Further, the order provided, upon praecipe of either party, that a custody
    hearing be scheduled after paternity of Child was established. Mother filed a
    praecipe in 2016.3        N.T., 7/8/19, at 26.   A conciliation conference was
    scheduled for July 11, 2016, but Mother did not appear. Id. at 26-27. Mother
    later explained she had been “really sick” at the time due to “a bad
    pregnancy.” Id. at 27. Mother’s praecipe was dismissed, and the July 1, 2014
    interim order remained in effect during the more than four years that followed.
    Id. at 27.    On September 24, 2018, R.D. filed the underlying petition for
    termination of parental rights.
    Mother testified that she sought to modify the July 1, 2014 custody order
    when she received the “termination papers.” N.T., 7/8/19, at 28. She stated,
    “I reached out to this courthouse the same month that I received the papers
    in the mail that she was trying to terminate my rights. And I reached out to
    the courthouse to mail me papers for a modification.” Id. Mother said the
    ____________________________________________
    3Mother confirmed she changed attorneys from Attorney Schwartz to Attorney
    Musselman. N.T., 7/8/19, at 26-27.
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    papers “never came.” Id. She clarified, “I thought the papers [were] coming,
    but it was her termination papers.” Id.
    The orphans’ court made the following inquiry:
    THE COURT: You said that you did not receive the paperwork
    regarding a request for modification of the custody order after you
    contacted the courthouse?
    [MOTHER]: Um hum.
    THE COURT: Did you ever contact them again to ask for the
    paperwork?
    [MOTHER]: No, because when I received the paper that she was
    trying to terminate my rights, that’s when I thought that was the
    paperwork. And I just got distracted from then.
    Id. at 34.
    R.D. petitioned for termination pursuant to 23 Pa.C.S.A. § 2511(a)(1),
    (2), (6), and (b); she also filed a report of intention to adopt. An evidentiary
    hearing commenced July 8, 2019. At that time, Child was six years old and
    had   completed   kindergarten.      See   Addendum     to   GAL   Report   and
    Recommendation, 7/2/19, at 3.
    R.D. testified, and presented the testimony of Mother, as-on-cross, and
    Nancy Morgan, Child’s mental health therapist. Mother testified on her own
    behalf, and also presented the testimony of Nancy Morgan.          In addition,
    Mother presented the testimony of Kathleen Lincoln, Esquire, the guardian ad
    litem (GAL) as well as Child’s Legal Counsel, and the court admitted into
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    evidence Attorney Lincoln’s reports dated November 19, 2018 and June 30,
    2019.4 Mother also presented testimony from her fiancé, K.B.
    At the conclusion of the hearing, the orphans’ court first addressed R.D.,
    and then Mother, stating:
    I’m not second guessing the orders that were entered in the
    custody case. The orders are there. They’re not appealed from.
    They remain in effect, et cetera. But it doesn’t sit well, let’s just
    say that. This doesn’t sit well.
    But the fact remains, [Mother], that it ultimately falls back
    on you to do whatever you can do, within reason, with reasonable
    firmness, and assertiveness, to exercise your parental rights,
    whether it is convenient or not. You didn’t do that.
    N.T., 7/8/19, at 125.
    ____________________________________________
    4 The orphans’ court appointed Attorney Lincoln as GAL and Child’s Legal
    Counsel. Attorney Lincoln testified Child “has consistently stated she wants
    to stay with [R.D.], that she understands [R.D.] would be adopting her, to the
    best of her ability to understand that. And she does not want to leave here.
    That is what she has consistently said to me.” N.T., 2/18/20, at 70. See In
    re Adoption of L.B.M., 
    161 A.3d 172
    , 174 (Pa. 2017) (plurality) (concluding
    23 Pa.C.S.A. § 2313(a) mandates appointment of counsel for children involved
    in contested involuntary termination of parental rights proceedings); In re
    T.S., 
    192 A.3d 1080
    , 1092 (Pa. 2018) (“during contested termination-of-
    parental-rights proceedings, where there is no conflict between a child’s legal
    and best interests, an attorney-guardian ad litem representing the child’s best
    interests can also represent the child’s legal interests.”); In re Adoption of
    K.M.G. 
    219 A.3d 662
    , 670 (Pa. Super. 2019) (en banc) (while this Court has
    authority to raise sua sponte issue of whether the trial court appointed any
    counsel for the child, it does not have authority to sua sponte review “whether
    a conflict existed between counsel’s representation and the child’s stated
    preference in an involuntary termination of parental rights proceeding”), aff'd
    
    240 A.3d 1218
     (Pa. 2020).
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    The court detailed its finding that R.D. had met her statutory burden
    under 23 Pa.C.S.A. § 2511(a)(1). N.T., 7/8/19, at 119-124. With respect to
    23 Pa.C.S.A. § 2511(b), the court stated, “the issue then becomes the bonding
    issue . . . I can’t say that there is a bond or not. I think it behooves the [c]ourt
    in this circumstance to have a bonding assessment. Id. at 124. On July 30,
    2019, the      court appointed Michael           Gillum, M.A., a   licensed   clinical
    psychologist, to perform a bonding assessment.5
    On February 18, 2020, the court convened a hearing on Child’s needs
    and welfare under § 2511(b). R.D. presented the testimony of Mr. Gillum,
    and the court admitted into evidence his reports dated October 14, 2019 and
    February 10, 2020. See N.T., 2/18/20, at 10-11 (Exhibits 1 and 2). R.D.
    testified, and the court admitted into evidence the “visit log” she prepared
    documenting Mother’s visits with Child. Id. at 40, 45 (Exhibit 3). In addition,
    R.D. presented the testimony of Nancy Morgan, Child’s mental health
    therapist, and the GAL. Mother testified on her own behalf, and presented the
    testimony of her sisters, L.B. and B.C. At the conclusion of the hearing, the
    ____________________________________________
    5  After the bonding assessment, R.D. filed a petition for special relief
    requesting the court terminate contact between Mother and Child pending
    further hearing, based on Mr. Gillum’s statement that Mother’s “behavior in
    visitations may be problematic based on the hostility expressed toward [R.D.].
    . . . Verbalizations to Child may be inappropriate as well.” Bonding
    Assessment, 10/14/19, at 10-11. The orphans’ court granted the petition on
    October 21, 2019.
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    orphans’ court stated that upon receipt of the transcript from the July 8, 2019
    hearing, it would schedule a time to issue its decision on the record. N.T.,
    2/18/20, at 132.
    On August 25, 2020,6 the orphans’ court convened, and began by
    stating there had been no argument “regarding the issue of bonding,” and
    that it “would be happy to entertain argument at this point” from the
    GAL/Legal Counsel, Mother’s counsel and R.D.’s counsel. N.T., 8/25/20, at 3.
    The GAL/Legal counsel, inter alia, opined that “while there is a connection
    between [Mother] and the child as far as their biography [sic], the relationship
    and the bond between [Mother] and the child is not so strong as to adversely
    affect the child should Your Honor terminate [Mother’s] rights.”      Id. at 4.
    Conversely, Mother’s counsel argued against termination, asserting that
    Mother “has attempted to preserve th[e] bond”; Mr. Gillum’s bonding
    assessment was “fatally defective”; and Child’s “interests will not be
    advanced” by termination. Id. at 5. In contrast, R.D.’s counsel credited Mr.
    Gillum’s assessment in advocating for termination, and also referenced the
    ____________________________________________
    6 At the beginning of the hearing, the orphans’ court noted the matter had
    been scheduled for August 5, 2020, but did not occur due to an unexpected
    medical emergency. N.T., 8/25/20, at 2-3. We also take notice of the delay
    caused by the COVID-19 pandemic, and the statewide judicial emergency
    declared by the Pennsylvania Supreme Court on March 16, 2020, and the
    President Judge of Northumberland County on March 18, 2020.                See
    Northumberland County Administrative Order, AD-20-3; see also, Order,
    3/25/20 (continuing the parties’ March 31, 2020 hearing “in light of public and
    health advisories regarding Coronavirus (COVID-19)”).
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    recommendation of the GAL/Legal Counsel. Id. at 8-9. Counsel emphasized,
    “let us not lose focus on who this is really affecting. It’s [Child].” Id. at 8.
    Counsel cited evidence of the strong parent/child bond between Child and
    R.D., as well as evidence that termination would serve Child’s needs and
    welfare and not be detrimental to Child. Id. at 8-10. Thereafter, the orphans’
    court discussed the evidence, addressed counsels’ arguments, and articulated
    its reasoning for entering the termination order. See id. at 10-16.7
    On September 17, 2020, Mother filed a 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). On September 22, 2020, the court filed an opinion
    referencing its reasoning set forth in the notes of testimony from July 8, 2019
    and August 25, 2020.          Mother and R.D. have both filed briefs, and the
    GAL/Legal Counsel has advised this Court she would not file a brief, “which
    would be redundant to the position and brief of [R.D.]. I fully support the trial
    court ruling and the position on appeal of [R.D.] as submitted by brief.” Letter,
    12/3/20.
    ISSUES
    On appeal, Mother presents the following issues for review:
    1.   Did the [orphans’] court err[] and abuse its discretion in
    determining that [R.D.] presented clear and convincing evidence
    ____________________________________________
    7Although the order is dated August 25, 2020, it was docketed September 9,
    2020.
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    that [Mother]’s parental rights should be terminated pursuant to
    23 Pa.C.S. § 2511(a)(1), § 2511(a)(2) and § 2511(a)(5)[?][8]
    2.    Did the [orphans’] court err[] and abuse its discretion in
    determining that [Mother] did not have a bond with [C]hild and
    relied upon a bond analysis that was deficient and did not pay
    most attention to the effect on [C]hild of permanently severing
    the parental bond?
    3.    Did the [orphans’] court err[] in finding that [Mother]’s
    conduct warrants termination of her parental rights where the
    testimony established that [M]other made reasonable efforts
    toward the reasonably prompt assumption of her full parental
    responsibility based on [M]other’s resources and circumstances
    available to her at the time of her attempt to reunite with [C]hild?
    4.    Did the [orphans’] court err[] in failing to give priority
    consideration to the developmental, physical and emotional needs
    and welfare of [C]hild in terminat[ing] [Mother]’s rights and failing
    to recognize that terminating [M]other’s rights would also
    terminate [C]hild’s relationship with siblings in [M]other’s
    custody?
    Mother’s Brief at 5-6.
    CONTROLLING LAW
    In reviewing Mother’s issues, we are particularly mindful of and
    emphasize the following:
    The standard of review in termination of parental rights cases
    requires appellate courts to accept the findings of fact and
    credibility determinations of the trial court if they are supported
    by the record. If the factual findings are supported, appellate
    courts review to determine if the trial court made an error of law
    or abused its discretion. A decision may be reversed for an abuse
    of   discretion    only   upon     demonstration      of    manifest
    unreasonableness, partiality, prejudice, bias, or ill-will. The trial
    ____________________________________________
    8 R.D. did not allege grounds for termination under Section 2511(a)(5), and
    the orphans’ court did not terminate Mother’s parental rights under this
    subsection.
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    court’s decision, however, should not be reversed merely because
    the record would support a different result. We have previously
    emphasized our deference to trial courts that often have first-hand
    observations of the parties spanning multiple hearings.
    In re T.S.M., 
    71 A.3d 251
    , 267 (Pa. 2013) (citations omitted).
    Termination is governed by the Adoption Act, which requires a
    bifurcated analysis.
    Initially, the focus is on the conduct of the parent. The party
    seeking termination must prove by clear and convincing evidence
    that the parent’s conduct satisfies the statutory grounds for
    termination delineated in Section 2511(a). Only if the court
    determines that the parent’s conduct warrants termination of his
    or her parental rights does the court engage in the second part of
    the analysis pursuant to Section 2511(b): determination of the
    needs and welfare of the child under the standard of best interests
    of the child. One major aspect of the needs and welfare analysis
    concerns the nature and status of the emotional bond between
    parent and child, with close attention paid to the effect on the child
    of permanently severing any such bond.
    In re L.M., 
    923 A.2d 505
    , 511 (Pa. Super. 2007) (citations omitted).
    Pertinently, Section 2511 states:
    (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
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    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 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) (citation
    omitted).
    Our Supreme Court has stated: “Section 2511 does not require that the
    parent demonstrate both a settled purpose of relinquishing parental claim to
    a child and refusal or failure to perform parental duties. Accordingly, parental
    rights may be terminated pursuant to Section 2511(a)(1) if the parent either
    demonstrates a settled purpose of relinquishing parental claim to a child or
    fails to perform parental duties.” In re Adoption of Charles E.D.M., 
    708 A.2d 88
    , 91 (Pa. 1998) (emphasis in original) (citation omitted). In addition,
    this Court has stated,
    the 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
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    of the totality of the circumstances, clearly warrants the
    involuntary termination.
    In re B.,N.M., 
    856 A.2d 847
    , 855 (Pa. Super. 2004) (citations omitted).
    We further opined:
    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
    . . . her physical and emotional needs.
    In re B.,N.M., supra (citations omitted) (emphasis added).
    A court must consider “the parent’s explanation for his or her conduct”
    and “the post-abandonment contact between parent and child,” before
    analyzing Section 2511(b). In re Z.S.W., 
    supra
     (quoting In re Adoption of
    Charles E.D.M., supra at 92). With respect to Section 2511(b), “Intangibles
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    such as love, comfort, security, and stability are involved in the inquiry into
    the needs and welfare of the child.” In re C.M.S., 
    884 A.2d 1284
    , 1287 (Pa.
    Super. 2005) (citation omitted). The court “must also discern the nature and
    status of the parent-child bond, with utmost attention to the effect on the child
    of permanently severing that bond.” 
    Id.
     (citation omitted). “In cases where
    there is no evidence of any bond between the parent and child, it is reasonable
    to infer that no bond exists.    The extent of any bond analysis, therefore,
    necessarily depends on the circumstances of the particular case.”             In re
    K.Z.S., 
    946 A.2d 753
    , 762-763 (Pa. Super. 2008) (citation omitted).
    GROUNDS FOR TERMINATION – § 2511(a)(1)
    As to Section 2511(a)(1), Mother argues in her first and third issues that
    the orphans’ court erred in finding by clear and convincing evidence that she
    refused or failed to perform her parental duties. Mother states:
    From the birth of [C]hild to the filing of the [p]etition to
    [t]erminate, the parental duties which Mother was allowed to
    perform were dictated to her initially by her incarceration status
    and upon her release [from prison] by the Court of Common Pleas
    of Northumberland County. The [c]ourt itself dictated to this
    uncounseled Mother that she travel every other weekend for four
    hours of supervised visits between July of 2014 and throughout
    the entirety of this litigation up until the announcement of the
    termination which occurred on August 25, 2020. Even the
    [orphans’] court acknowledged that use of bus transportation
    between Philadelphia and Sunbury would be problematic. To
    place time restrictions and contact restrictions on Mother and then
    use lack of sufficient contact as a basis for termination is circular
    logic at best and smacks of fundamental unfairness. It also
    rewards R.D. for her duplicitousness and complete lack of
    cooperation with Mother during this entire process.
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    Mother’s Brief at 16-17 (record citations omitted). After careful review, we
    are not persuaded by Mother’s argument.
    First, we note that contrary to Mother’s assertion, she was not
    “uncounseled.”9 We also disagree that the orphans’ court based its decision
    regarding grounds for termination under Section 2511(a)(1) on Mother’s
    conduct while incarcerated or on parole. Likewise, we disagree that the court
    faulted Mother for not performing parental duties that she was incapable of
    performing under the July 1, 2014 custody order. Rather, the record reveals
    that the court very much examined Mother’s conduct based on the
    circumstances of this case, including Mother’s rights and limitations prescribed
    in the July 1, 2014 custody order.
    ____________________________________________
    9   Mother testified on direct examination:
    Q. Do you remember an attorney by the name of Sue Schwartz?
    A. Oh, Ms. Schwartz; yes, I do. I kept in contact with her a lot. I
    do remember Ms. Schwartz.
    Q. And at least at some point during the custody litigation, did you
    retain private counsel? Did you hire an Attorney Musselman?
    A. Yes.
    Q. What was the purpose in having Attorney S[ch]wartz and
    Attorney Musselman represent you during the custody case?
    A. Oh, to get my daughter back.
    N.T., 7/8/19, at 22.
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    We also find no error in the court’s consideration and weight attributed
    to R.D.’s failure to return Child to Mother when Mother was released from
    prison in 2014.      Mother describes R.D.’s actions as “duplicitous” and a
    “manipulation of the system.” See Mother’s Brief at 13 (“The court put little,
    if any, weight into the manipulation of the system [by R.D.].”). The record
    belies this claim.
    The orphans’ court did consider R.D.’s actions. For example, the court
    stated that while it was not “second guessing the [2014 custody] orders . . .
    they don’t sit well, let’s just say that. This doesn’t sit well.” N.T., 7/8/19, at
    125. The court also stated: “I have my concerns about all of that, but that’s
    not what’s in front of me at this point.” N.T., 8/25/20, at 11. Nonetheless,
    examining the facts of record in the context of the applicable law, the court
    found Mother failed to perform parental duties “for a period of at least six
    months immediately preceding the filing of the petition.”        23 Pa.C.S.A. §
    2511(a)(1).    The court considered the “whole history of the case,” and
    “examined the individual circumstances” to “determine if the evidence, in light
    of the totality of the circumstances,” warranted termination. In re B.,N.M.,
    
    856 A.2d at 855
    . Neither the orphans’ court nor this Court condones R.D.’s
    actions insofar as she repudiated her agreement to return Child to Mother in
    2014. However, the orphans’ court explained:
    We are literally years beyond when [R.D.] first came into custody
    of [Child]. We are years beyond when [Mother] got out of [SCI]
    Muncy, left the halfway house. [S]o whatever happened in 2013,
    when [R.D.] first was given physical custody, not by the [c]ourt,
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    but by [Mother], and what the motivations were, are outside the
    purview of this [c]ourt.
    There are existing court orders in a custody case in this county
    that control the circumstances. [Mother] had no idea what they
    really said. She thought she was only entitled to visits for two
    hours. In fact, the order says at least four. She thought that the
    orders said every other weekend alternating between Philadelphia
    and Sunbury. An order that was in effect for two months said
    that. But the subsequent order said that the visits were to occur
    only in Sunbury for no less than four hours.
    ***
    The . . . issue here is what [Mother] has and has not done
    to exercise her parental rights. And the long and short of
    it is not much. Whatever impediments are placed in the
    way of a parent to exercise their parental rights have to be
    met with reasonable firmness.              Very honestly, I can’t
    remember the exact phrase that is used, but a parent can’t sit
    back and say boy, they’re not being cooperative, I should have
    more access to my kids. A parent has to put forth regular
    concerted efforts to . . . establish and/or maintain contact with a
    child. At the very least if there is an ongoing custody case, one
    would think that the parent who is complaining about their access
    to their child being defeated, would know what the [c]ourt order
    says. Two hours. [Mother] says I was supposed to have the child
    for two hours, and was supposed to alternate between
    Philadelphia and then Sunbury. It is at least four hours — at least
    four hours of supervised visits. And ultimately since July of 2014,
    the visits were supposed to be in Sunbury.
    Now, what efforts has [Mother] made? Her testimony was that
    [R.D.] would not come to Philadelphia, and she was under no
    obligation to after July 1 of 2014. So what efforts did [Mother]
    make to get up to Sunbury. Well, she said she took the bus two
    or three times. And she initially said I don’t know, maybe around
    ten visits plus or minus by being brought by her fiancé[]. But
    maybe it was more than that when I pressed her on it. And I said
    okay, let’s say 20. And then what was interesting is when [K.B.,
    Mother’s fiancé] testified, he testified that he thinks he brought
    her up here 6 to 10 times. So if we credit him, we are back to
    around the ten times. That is 13 visits in a five-year period. Even
    if they all occurred prior to the filing of the petition to terminate,
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    that is 13 visits in a four year period.    So on average, three
    times a year to come up.
    [Mother]’s testimony, I think the indefiniteness of her testimony,
    raises some concerns. I don’t think she really knows the answers
    to some of the questions. Sometimes she would say that. I’m
    more persuaded by the testimony of [R.D.] regarding the
    frequency of the visits. The frequency of the contact. It is
    not enough for [Mother] to say I reached out to the courthouse
    and they didn’t send me the paperwork for a modification. Well,
    you reach out again. And then you reach out again. And then
    you reach out again until you get the paperwork if you’re truly
    fighting for the physical custody of your daughter.
    Yes, it is a problem to get a bus from Morrisville[10] or Philadelphia
    to Sunbury, but it can be done. It can be done. Maybe you only
    do it on average once a month as opposed to every other week.
    Do I think that [R.D.] was cooperative with you? No, I don’t. I
    don’t. Do I think that is enough to justify [Mother’s] lack of effort?
    No, I don’t.
    In [R.D.]’s petition to terminate, . . . [she] allege[s] that [Mother]
    has failed to perform parental duties, and has evidenced a settled
    purpose to relinquish her parental rights to the child for a period
    exceeding six months, in that [M]other has had almost no contact
    with the minor child, nor provided for any care or financial
    assistance of [C]hild since her birth [in] March [of] 2013.
    . . . [Mother] did testify that she sent some books and a doll.
    [R.D.] confirmed that. But we don’t find [Mother]’s testimony
    credible regarding birthday cards every year, et cetera. . . .
    ...
    So we’re down to really whether [Mother] failed to perform
    parental duties and/or evidenced a settled purpose to relinquish
    her parental role. For all intents and purposes, what [Mother] has
    done is said she is my daughter, I carried her for nine months, I
    want her.
    ____________________________________________
    10   Mother testified she lives in Morrisville, Bucks County. N.T., 7/8/19, at 7.
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    J-A03015-21
    She doesn’t know the . . . name of [C]hild’s school, doesn’t know
    her teacher’s name. There was no evidence that she ever asked
    [R.D.] about any medical issues. . . . But medical issues, mental
    health issues, there is no testimony of any of that, of any normal
    inquiries. No testimony of well, I asked [] about how kindergarten
    was going. There was no testimony of that. It was, I want my
    child when I want her, and I want her because she’s my child.
    That doesn’t do it.
    So I think [R.D.] has demonstrated by clear and convincing
    evidence that for a period of at least six months immediately
    preceding the filing of the petition, [Mother] has . . . refused and
    failed to perform parental duties.
    N.T., 7/8/19, at 119-124 (emphasis added).
    The record supports the court’s findings.11        For example, Mother
    testified, “I thought [visitation with Child] was two [hours]. But I thought
    [R.D.] was supposed to be in Philadelphia. I thought we had to share.” N.T.,
    7/8/19, at 13. When the court asked Mother why she thought visits for the
    past five years were to alternate between Philadelphia and Sunbury, she
    responded: “Well, that is the information I heard. I don’t know. . . .” Id. at
    94.
    ____________________________________________
    11We review Mother’s performance of parental duties up through and including
    September of 2018, the month in which she received notice of the filing of the
    involuntary termination petition. See 23 Pa.C.S.A. § 2511(b) (“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.”).
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    J-A03015-21
    Mother also testified in response to questioning by the orphans’ court as
    follows:
    Q. Ma’am, you testified that you came two or three times on the
    bus visits, how many times did your fiancé[] bring you here?
    A. [He] brought me here . . . more than I rode the bus.
    THE COURT: How many times ballpark?
    [MOTHER]: Maybe ten, a little over ten, more than ten.[12]
    THE COURT: You said you took the bus two or three times from
    Philadelphia, and that was early on after you got out of the
    halfway house?
    [MOTHER]: Yes.
    THE COURT: Is that correct?
    [MOTHER]: Yes.
    THE COURT: And then you had approximately ten trips where
    your fiancé[] brought you up?
    [MOTHER]: It could have been — I’m pretty sure it was more
    than ten, Your Honor.
    THE COURT: Ma’am, your testimony is a moving target. One
    minute you say . . . you’re on SSI, then you say you’re on
    SSD.
    ...
    THE COURT: Another moment you said that you hadn’t worked
    since 2002, now it is 2012. You said approximately ten,
    maybe a little more, and now it is suddenly ten. Let’s say it is
    20. Let’s say your fiancé[] brought you up here 20 times.
    When do you and your fiancé[] get [together]?
    ____________________________________________
    12 Mother’s fiancé, K.B., testified he brought Mother to see Child “between six
    to ten” times. N.T., 7/8/19, at 105.
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    J-A03015-21
    [MOTHER]: When I was in the halfway house.
    THE COURT: So sometime in 2014.          So approximately five
    years ago?
    [MOTHER]: Yes. About five years ago.
    THE COURT: So if we have 20 visits that he has brought you
    up, and three visits that you came up on the bus, that’s 23
    visits where you have come up here in the past five years.
    That’s fewer than five visits per year on average when you
    have come up here. So that is fewer than one visit every two
    months.
    ...
    THE COURT: So you have had 23 visits in the last five years.
    [MOTHER]: Yes. And I wish I had more, Your Honor.
    N.T., 7/8/19, at 91-96.
    R.D. testified that Mother did not visit Child in 2014; Mother had three
    visits in 2015; Mother had one visit in 2016; Mother had no visits in 2017;
    and Mother had one visit in July of 2018. N.T., 7/8/19, at 51-52. She also
    testified Mother did not visit Child between February 2016 and July of 2018.
    Id. at 52.
    Mother refuted R.D.’s claim that she did not visit Child in 2017. She
    testified she visited Child “[a] couple” of times in 2017.      Id. at 30.   With
    respect to how many times she visited between January and September of
    2018, Mother testified, “[a] couple.” Id. at 31. Mother stated, “I never went
    a whole six months without visiting” Child. Id.
    Mother also testified about R.D.’s lack of cooperation:
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    J-A03015-21
    Q. [H]ow would you describe [R.D.]’s level of cooperation in
    accommodating visits?
    A. She made it kind of hard. She could have made it a little easier
    for me.
    Q. What would she do?
    A. I would ask her — if I couldn’t make it on a Sunday, I would
    say, well, could I come on Friday? No. She will say no. [Child]
    is in school, which [Child] is not in school all day, I stated to her.
    She just wasn’t having it.
    N.T., 7/8/19, at 23.
    On cross-examination, R.D. responded to questions concerning her
    cooperation as follows:
    Q. When [Child] is less than 13 months old, we already have
    problems between you and [Mother] as far as her perception that
    you’re interfering with her bonding with her daughter?
    A. Yes.
    Q. Do you have any reason why [Mother] would come to the
    conclusion?
    A. Because [Mother] doesn’t do anything. [Mother] wants
    everyone to do everything else. [Mother] made no attempt to
    come around. [Mother] made no attempt to call. No phone
    number. I couldn’t even tell you [Mother]’s address. . . .
    [Mother] gives no information. How am I supposed to help them
    bond when there is no meeting place? She wants to wait until the
    last minute. There is no phone number given. There is no way to
    get a hold of her.[13]
    ____________________________________________
    13 R.D. testified that in May of 2014, when the custody order required the
    parties to alternate visits between Philadelphia and Sunbury, she did not take
    Child to Philadelphia because Mother “refused to give an address. [Mother]
    refused to give a phone number. . . . [Mother] called me the day of and
    asked me why I wasn’t there. . . . I’m not going to guess where she’s at. I
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    J-A03015-21
    Q. How did you attempt to resolve that with [Mother]? What did
    you do as far as working with her to get her child back to her?
    A. Nothing. You can’t work with [Mother].
    Q. You can’t work with [Mother]?
    A. No. No one can work with [Mother].
    N.T., 7/8/19, at 68-69.
    The orphans’ court further questioned Mother:
    THE COURT: How often did you call [Child]?
    [MOTHER]: I call [Child] almost every day.
    ...
    THE COURT: Beginning when?
    ...
    [MOTHER]: Everyday I could, that I was allowed to talk to her.
    THE COURT: At what point did you begin your almost every day
    phone calls; when you were in SCI Muncy, after you got out, when
    you were in the halfway house, after you got out? When?
    [MOTHER]: Well, I couldn’t call her when I was in Muncy.
    THE COURT: That’s what I’m asking.
    [MOTHER]: So when I came into the halfway house, I kept in
    touch with [R.D.]. It was more [R.D.] than [Child].
    ...
    THE COURT: How many birthday cards have you sent to [Child]?
    ____________________________________________
    had no clue where she was. Mother doesn’t give any information to know
    anything.” N.T., 7/8/19, at 67-68.
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    J-A03015-21
    [MOTHER]: Six. She is six years old. I sent six.
    THE COURT: [Y]ou indicated that most of your contact was with
    [R.D.,] not [Child]; how frequently would you speak with [Child]?
    [MOTHER]: It wasn’t really frequent, only because I was
    going through something. But I made sure I kept in contact
    with [R.D.] a lot to check on [Child]. When I started to feel better,
    yeah, I started to talk to [Child]. But [R.D.] knew everything that
    was going on with me because I kept in contact with her. I
    thought she was a friend.
    THE COURT: Is there a reason you don’t know [Child]’s school
    name?
    [MOTHER]: I asked [Child] what school she goes to.
    THE COURT: Is there a reason you don’t know what that is?
    [MOTHER]: I didn’t remember what [Child] told me, but I asked
    her.
    Id. at 35-37 (emphasis added).
    After   careful review, we     find the   record supports the       court’s
    determination that Mother evidenced a settled purpose or refused or failed to
    perform her parental duties under Section 2511(a)(1).
    NEEDS AND WELFARE – § 2511(b)
    In her second and fourth issues, Mother argues the orphans’ court
    abused its discretion in finding that termination served the developmental,
    physical, and emotional needs and welfare of Child. Mother asserts that the
    court erred because “there was some type of relationship between Mother and
    [C]hild. . . .” Mother’s Brief at 19. Mother    claims   the   court   “must   be
    reversed since Mother successfully established a relationship.” Id. at 20. To
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    J-A03015-21
    support this argument, Mother assails the assessment by the psychologist,
    Mr. Gillum.    Mother maintains the assessment was not credible because
    Mother’s relationship with Child was “limited by the custody litigation order
    allowing for very limited contacts in an artificial setting. . . .” Id.
    We review Mother’s argument mindful of the following:
    While a parent’s emotional bond with his or her child is a major
    aspect of the subsection 2511(b) best-interest analysis, it is
    nonetheless only one of many factors to be considered by
    the court when determining what is in the best interest of
    the child. In re K.K.R.S., 
    958 A.2d 529
    , 533-536 (Pa. Super.
    2008). The mere existence of an emotional bond does not
    preclude the termination of parental rights. See In re T.D., 
    949 A.2d 910
     (Pa. Super. 2008) (trial court’s decision to terminate
    parents’ parental rights was affirmed where court balanced strong
    emotional bond against parents’ inability to serve needs of child).
    Rather, the orphans’ court must examine the status of the bond
    to determine whether its termination “would destroy an existing,
    necessary and beneficial relationship.” In re Adoption of T.B.B.,
    
    835 A.2d 387
    , 397 (Pa. Super. 2003). As we explained in In re
    A.S., 
    11 A.3d 473
    , 483 (Pa. Super. 2010),
    [I]n addition to a bond examination, the trial court
    can equally emphasize the safety needs of the child,
    and should also consider the intangibles, such as the
    love, comfort, security, and stability the child might
    have with the foster parent. Additionally, this Court stated
    that the trial court should consider the importance of
    continuity of relationships and whether any existing
    parent-child     bond    can   be     severed      without
    detrimental effects on the child.
    In re N.A.M., 
    33 A.3d 95
    , 103 (Pa. Super. 2011) (emphasis added).
    Our Supreme Court has stated, “Common sense dictates that courts
    considering termination must also consider whether the children are in a pre-
    adoptive home and whether they have a bond with their [custodial] parent[].”
    - 24 -
    J-A03015-21
    In re T.S.M., 71 A.3d at 268. The Supreme Court directed that in weighing
    the bond considerations pursuant to Section 2511(b), “courts must keep the
    ticking clock of childhood ever in mind.” Id. at 269. The Court continued:
    “Children are young for a scant number of years, and we have an obligation
    to see to their healthy development quickly. When courts fail . . . the result,
    all too often, is catastrophically maladjusted children.” Id.
    Mr. Gillum provided the following opinion on direct examination:
    [Child] had really no bond to [Mother]. She was extremely
    bonded to [R.D.]. . . . [R.D.] and [Child] have a very strong
    bond, very typical parent-child type of bond. With [Child] and
    [Mother] there is not much of a bond developed.
    N.T., 2/18/20, at 6-7. Mr. Gillum explained the basis for his opinion as follows:
    Because . . . having spoken with [Child] about encouraging her to
    make phone calls or to talk to [Mother], and having her reject that
    idea and put up some resistance to me. And having observed her
    being told by [R.D.] that she needed to call and not wanting to
    call. I also based it on [Child] telling me that she doesn’t feel
    comfortable with [Mother]. She’s not sure how to interact with
    her. She gets very anxious. . . .
    Then in the observations of [Child] with [Mother], each
    observation I went to essentially they started out by eating a meal
    sitting at the same booth, where [Child] was on the inside. And
    then as the meal starts to finish, both times I observed there was
    a very intense conversation going on between [Mother] and
    [Child]. They both looked very somber and very serious. And
    then a short time after that [Child] was up and pretty much
    running around the restaurant for the rest of the visit and she
    essentially would avoid [Mother]. She would come around the
    other side of the restaurant, set up shop with whatever she was
    playing with, and hang out over there. She really didn’t return
    when she was asked to return.
    So I think what she tells me and what I observed . . . what I
    observed in that environment twice now . . . I think she is very
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    J-A03015-21
    reluctant to have much of anything to do with [Mother], whether
    it’s a phone call or visit. I don’t think that’s going to change. I
    think she has obviously, you know, been very well bonded to
    [R.D.] pretty much her whole life, with [Mother] coming in much
    later in her life and trying to build a bond with her.
    Id. at 7-8.
    With respect to whether it would be detrimental to Child to terminate
    Mother’s parental rights, Mr. Gillum testified:
    I think [Child] would probably feel some relief. She’s been very
    anxious about this issue for a long time. I’m sure her therapist
    can speak to that better.
    In any case, I think she’ll be very relieved. I don’t see her
    experiencing any damage because there just was no bond built to
    disrupt.
    Id. at 9.
    In his report dated October 14, 2019, Mr. Gillum opined, “Any attempt
    to place Child outside of her current home would certainly result in severe
    emotional trauma. Even if the brief period of consistent visitation were to be
    extended (with consistent utilization of all visitation time allotted), it is
    extremely unlikely [Child]’s intense bond with [R.D.] would be diminished.”
    Bonding Assessment, 10/14/19, at 10.
    Nancy Morgan, a mental health therapist, testified she has been treating
    Child for “[a]bout three years” due to behavioral issues. N.T., 2/18/20, at 51-
    52. Ms. Morgan stated that she and Child “would talk about her behaviors of
    acting out with [R.D.] after visitations” with Mother. Id. at 55. Ms. Morgan
    continued:
    - 26 -
    J-A03015-21
    And what we find is that when children are dealing with a
    traumatic event, they will test their bond with their primary
    caregiver to ensure that — that they are unconditionally loved.
    And so [Child] was doing that through behaviors such as,
    defecating in her room, intentionally spilling quantities of items on
    the bathroom floor, throwing things.
    Id. at 55-56. Ms. Morgan responded to questioning with respect to whether
    Child would suffer any harm if Mother’s parental rights were terminated:
    Q. Have you seen anything within your counseling with [Child]
    that would cause you any hesitation or any concerns — that there
    is a bond between [Child] and [M]other that would cause you any
    concern if the [c]ourt were to terminate her rights?
    A. No.
    Q. Through your counseling have you observed any type of bond
    [Child] has with [R.D.]?
    A. Very strong. [R.D.] is her primary connection and her person
    that she trusts without question.
    Id. at 57-58.
    R.D. presented the testimony of the GAL concerning two reports the GAL
    filed with the court, and in which she recommended that Child “remain with
    [R.D.], that the rights of the parent be terminated.” N.T., 2/18/20, at 67.
    The GAL explained:
    [Child] has consistently stated to me, I believe she understands
    that Ms. [] is her biological mommy. She refers to her — it’s in
    my initial report. She referred to her as, “I was in her belly.”
    So when I was trying to ascertain if she really understood the
    difference, that’s how she described [Mother,] she referred to her
    as [S___] Mommy many times, but she also refers to [R.D.] as
    Mommy.
    She’s very well-connected here. It’s pretty much the only lifestyle
    that she has known since her birth. She has reported that she is
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    J-A03015-21
    anxious if she has to leave here.      She doesn’t want to live
    anywhere else.
    Id. at 67-68.
    On cross-examination by Mother’s counsel, the GAL testified that she
    perceives Child is “fearful” that she will eventually be living with Mother. Id.
    at 71.
    The GAL testified with respect to Child’s preference as follows:
    [T]he last time I spoke to [Child] was right around the holidays,
    and she has consistently stated that she wants to stay here with
    [R.D.], that she understands that [R.D.] would be adopting her,
    to the best of her ability to understand that. And she does not
    want to leave here. That is what she has consistently said to me.
    The other thing that [Child] has consistently said is she does not
    want to talk to [Mother] on the phone. I asked her why, why
    doesn’t she want to do that. She said she gets very confused
    about what [Mother] says to her. She says stuff — [Mother] says
    stuff to her, to [Child] that she doesn’t understand. She doesn’t
    like that [Mother] tells her that [R.D.] is not her family. That
    confuses her and makes her feel bad.
    Id. at 70. The GAL also testified on cross-examination by Mother’s counsel,
    “Child has consistently expressed that she does not want to have a
    relationship with Mother.” Id. at 74. In sum, the testimony of Mr. Gillum,
    Ms. Morgan, and the GAL, as well as their reports either entered as exhibits
    or filed on the record, support the court’s conclusion that termination serves
    Child’s needs and welfare.
    Finally, we are not persuaded by Mother’s emphasis on                “the
    demographics involved,” given that Child, Mother and Child’s biological half-
    siblings are African American, while R.D. is white, such that termination would
    - 28 -
    J-A03015-21
    cause Child to be “culturally isolated.”      Mother’s Brief at 23-24.   Mother
    attempts to discredit Mr. Gillum’s bonding assessment because he did not
    observe Child with her half-sisters who live with Mother. Mother also asserts
    that the bonding assessment was deficient based on the following testimony
    by Mr. Gillum:
    Q. In preparation of this particular report did you review any
    literature or consult with any experts on the impact of multi-racial
    adoption on this child would have?
    A. Not beyond myself, no.
    Q. You didn’t think that was necessary?
    A. No. I didn’t think it was necessary at all.
    N.T., 2/18/20, at 17.
    Mother claims Mr. Gillum’s failure to “address the multi-racial aspect of
    this case” constituted a “critical deficiency.” Mother’s Brief at 23. Mother
    contends the orphans’ court “unreasonably concluded from the facts before it
    that termination was in [C]hild’s best interest” and asks this Court to “correct
    this error.” Mother’s Brief at 25. Mother cites no legal authority to support
    this claim, and like the orphans’ court, we are not persuaded by this argument.
    Mr. Gillum was charged with assessing the bond between Mother and
    Child, and R.D. and Child — not the impact of multi-racial adoption.         The
    orphans’ court commented at length:
    The only testimony we had about the issue of race was
    limited testimony on cross of [M]r. Gillum. …
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    J-A03015-21
    There was no testimony – and [Counsel for Mother], I
    understand what you’re saying. I understand the concerns you’re
    raising in your arguments. But there is no testimony before the
    [c]ourt offered by anyone that race alone is enough to decide this
    case which is in effect I think what you’re doing.
    Mr. Gillum’s testimony was that there is no bond.
    … [Child’s] counselor – Miss Morgan indicated there was no
    bond.
    The Guardian Ad Litem I believe the testimony was there
    was some bond, but certainly not one to an extent that [Child]
    would suffer any damage as a consequence of the termination of
    parental rights of [Mother].
    I can’t jump – go past that to say we’re dealing with a child
    of color, and therefore one shouldn’t break whatever bond there
    may be between that child of color and a mother of color.
    The [c]ourt has no knowledge of what the ethnicity, race,
    whatever, of the father is. I think that kids get – [Child] is, what,
    six?
    [MOTHER’S COUNSEL]: Seven, Your Honor.
    ***
    I’ve received no testimony that it is, per se, better that a
    child be raised by a parent or parents of their own race or
    ethnicity. Maybe, if everything else was equal, but I don’t know
    because I have no – I have no testimony.
    . . . I don’t think we can . . . jump to the conclusion that it
    must be better for [Child] to be raised by her biological mother
    because her biological mother shares at least part of her ethnicity,
    as opposed to being raised by [R.D.].
    Let’s go back to why we’re here. The issue is whether
    there’s a bond. Mr. Gillum testified at Page 9 of the transcript of
    February 18th that not only was there no bond, but that he thought
    [Child] would be relieved if she did not have to interact with
    [Mother] any longer.
    At Page 30 Mr. Gillum acknowledged there are times when
    a parent who has been out of the child’s life and is coming back
    - 30 -
    J-A03015-21
    into the child’s life may be able to and does in fact establish a
    bond. He did not see that occur or be in the process of occurring
    in this case.
    ***
    [Mother] did not do all that she could. She did not
    demonstrate reasonable firmness in the face of adversity. She did
    not extend herself and do all she could or even very honestly close
    to all that she could to create a bond or any portion thereof with
    [Child].
    ***
    Miss Morgan testified about [Child’s] behavior degrading
    after there were visits with [Mother]. That is hardly indicative of
    a bond.
    Miss Morgan also testified that there was no evidence – that
    she saw no evidence of a bond. That was page I believe 57
    between [Child] and [Mother].
    I believe it was Miss Morgan at page 74[14] – Miss Morgan
    testified – as her counselor says that “[Child] has consistently
    expressed that she does not want to have a relationship with
    [Mother].”
    Do I like everything about this factual situation and what
    I’ve heard in this testimony? No. But that’s not what’s relevant.
    What’s relevant is based on the evidence presented – and I
    previously found as I indicated – that [Mother] demonstrated a
    settled purpose to relinquish her parental rights by her inactivity
    basically, or lack of activity, lack of effort.
    Again, . . . there is no evidence of a bond that was presented
    to this [c]ourt, a bond existing between [Mother] and [Child].
    And therefore, the [c]ourt will enter an order terminating
    [Mother’s] parental rights. Thank you.
    ____________________________________________
    14It was not Miss Morgan, but the GAL/Legal Counsel who testified [Child]
    “has consistently expressed that she does not want to have a relationship with
    [Mother].” N.T., 2/18/20, at 74.
    - 31 -
    J-A03015-21
    N.T., 8/25/20, at 12-16.
    Upon review, we find the record supports the orphans’ court’s factual
    findings and credibility determinations. In re T.S.M., 71 A.3d at 267. The
    record also demonstrates that the orphans’ court properly applied the law in
    deciding that clear and convincing evidence supported termination under 23
    Pa.C.S.A. § 2511(a)(1) and (b). Thus, we find no error of law or abuse of
    discretion.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 04/09/2021
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