J-S84031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: E.C., A MINOR                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: P.C., FATHER
                                                      No. 1297 EDA 2016


                Appeal from the Order Entered March 29, 2016
       in the Court of Common Pleas of Philadelphia County Family Court
                                  at No(s):
                          CP-51-AP-0000280-2015
                          CP-51-DP-0001663-2012
                           FID 51-FN-370117-2009

IN THE INTEREST OF: P.E.C., A MINOR               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: P.C., FATHER
                                                      No. 1299 EDA 2016


                Appeal from the Order Entered March 29, 2016
       in the Court of Common Pleas of Philadelphia County Family Court
                                  at No(s):
                          CP-51-AP-0000279-2015
                          CP-51-DP-0001664-2012
                           FID 51-FN-370117-2009

BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 16, 2016

        Appellant, P.C. (“Father”), appeals from the orders entered in the

Philadelphia County Court of Common Pleas, which involuntarily terminated

his parental rights to minor children, E.C. and P.E.C. (“Children”), pursuant

to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. We

affirm.

*
    Former Justice specially assigned to the Superior Court.
J-S84031-16


      We adopt the facts and procedural history set forth by the trial court’s

opinion. See Trial Ct. Op., 5/25/16, at 1-4.

      Father raises the following issues for our review:

         A. Whether the trial court committed reversible error when
         it involuntarily terminated [F]ather’s parental rights where
         such determination was not supported by clear and
         convincing evidence under the Adoption Act 23 Pa.C.S.A.
         §2511 (a)(1), (a)(2), (a)(5), and (a)(8) as [F]ather made
         progress towards working and meeting his FSP goals.

         B. Whether the trial court committed reversible error when
         it involuntarily terminated [F]ather’s parental rights
         without giving primary consideration to the effect that the
         termination would have on the developmental physical and
         emotional needs of [Children] as required by the Adoption
         Act 23 Pa.C.S.A. §2511(b)?

Father’s Brief at 2.

      Appellate review in termination of parental rights cases implicates the

following principles:

         In cases involving termination of parental rights: “our
         standard of review is limited to determining whether the
         order of the trial court is supported by competent
         evidence, and whether the trial court gave adequate
         consideration to the effect of such a decree on the welfare
         of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa. Super. 2010) (citation omitted).

            Absent an abuse of discretion, an error of law, or
            insufficient evidentiary support for the trial court’s
            decision, the decree must stand. . . . 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.




                                     -2-
J-S84031-16


         In re B.L.W., 843 A.2d 380, 383 (Pa. Super.) (en banc),
         appeal denied, 863 A.2d 1141 (Pa. 2004) (internal
         citations omitted).

            Furthermore, we note that the trial court, as the
            finder of fact, is the sole determiner of the credibility
            of witnesses and all conflicts in testimony are to be
            resolved by [the] finder of fact. The burden of proof
            is on the party seeking termination to establish by
            clear and convincing evidence the existence of
            grounds for doing so.

         In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa. Super.
         2002) (internal citations and quotation marks omitted).
         The standard of clear and convincing evidence means
         testimony that is so clear, direct, weighty, and convincing
         as to enable the trier of fact to come to a clear conviction,
         without hesitation, of the truth of the precise facts in issue.
         In re J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002).
         We may uphold a termination decision if any proper basis
         exists for the result reached. In re C.S., 761 A.2d 1197,
         1201 (Pa. Super. 2000) (en banc). If the court’s findings
         are supported by competent evidence, we must affirm the
         court’s decision, even if the record could support an
         opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]
         (Pa. Super. 2004).

In re Z.P., 994 A.2d at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa. Super. 2007)).

      The Philadelphia Department of Human Services (“DHS”) sought

involuntary termination of Father’s parental rights on the following grounds:

         § 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 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


                                      -3-
J-S84031-16


          of relinquishing parental claim to a child or has
          refused or failed to perform parental duties.

          (2) The repeated and continued incapacity, abuse,
          neglect or refusal of the parent has caused the child
          to be without essential parental care, control or
          subsistence necessary for his physical or mental
          well-being and the conditions and causes of the
          incapacity, abuse, neglect or refusal cannot or will
          not be remedied by the parent.

                               *    *    *

          (5) The child has been removed from the care of the
          parent by the court or under a voluntary agreement
          with an agency for a period of at least six months,
          the conditions which led to the removal or placement
          of the child continue to exist, the parent cannot or
          will not remedy those conditions within a reasonable
          period of time, the services or assistance reasonably
          available to the parent are not likely to remedy the
          conditions which led to the removal or placement of
          the child within a reasonable period of time and
          termination of the parental rights would best serve
          the needs and welfare of the child.

                               *    *    *

          (8) The child has been removed from the care of the
          parent by the court or under a voluntary agreement
          with an agency, 12 months or more have elapsed
          from the date of removal or placement, the
          conditions which led to the removal or placement of
          the child continue to exist and termination of
          parental rights would best serve the needs and
          welfare of the child.

                               *    *    *

       (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


                                   -4-
J-S84031-16


         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. § 2511(a)(1), (2), (5), (8), and (b).

      “Parental rights may be involuntarily terminated where any one

subsection of Section 2511(a) is satisfied, along with consideration of the

subsection 2511(b) provisions.” In re Z.P., 994 A.2d at 1117.

         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.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (internal citations

omitted).

      Termination under Section 2511(a)(1) involves the following:

            To satisfy the requirements of [S]ection 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 addition,

            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


                                     -5-
J-S84031-16


            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.

            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 re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citations omitted).

Regarding the six-month period prior to filing the termination petition:

         [T]he 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 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).

      The   grounds    for    termination   of   parental   rights    under   Section

2511(a)(2), due to parental incapacity that cannot be remedied, are not

limited to affirmative misconduct; to the contrary, those grounds may

include acts of refusal as well as incapacity to perform parental duties. In

re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002). “Parents are required to

make diligent efforts towards the reasonably prompt assumption of full

parental responsibilities.”   Id. at 340 (citation omitted).         The fundamental

test in termination of parental rights under Section 2511(a)(2) was long ago


                                       -6-
J-S84031-16


stated in the case of In re Geiger, 331 A.2d 172 (Pa. 1975), where our

Supreme Court announced that under what is now Section 2511(a)(2), the

involuntary termination petitioner “must prove (1) repeated and continued

incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,

neglect or refusal caused the child to be without essential parental care,

control or subsistence; and (3) that the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied.” In Interest of Lilley,

719 A.2d 327, 330 (Pa. Super. 1998).

      Furthermore, termination of parental rights under Section 2511(a)(5)

requires: “(1) the child has been removed from parental care for at least six

months; (2) the conditions which led to removal and placement of the child

continue to exist; and (3) termination of parental rights would best serve the

needs and welfare of the child.”       In re Z.P., 994 A.2d at 1118 (citation

omitted).

      To terminate parental rights under Section 2511(a)(8), the petitioner

must demonstrate the following factors: “(1) the child has been removed

from parental care for [twelve] months or more from the date of removal;

(2) the conditions which led to the removal or placement of the child

continue to exist; and (3) termination of parental rights would best serve the

[child’s] needs and welfare . . . .”    In re Adoption of M.E.P., 825 A.2d

1266, 1275-76 (Pa. Super. 2003).




                                       -7-
J-S84031-16


      Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520 (Pa.

Super. 2006). “Intangibles such as love, comfort, security, and stability are

involved when inquiring about the needs and welfare of the child. The court

must also discern the nature and status of the parent-child bond, paying

close attention to the effect on the child of permanently severing the bond.”

Id. at 520 (citations omitted). Significantly:

         In this context, the court must take into account whether a
         bond exists between child and parent, and whether
         termination would destroy an existing, necessary and
         beneficial relationship.

            When conducting a bonding analysis, the court is not
         required to use expert testimony. Social workers and
         caseworkers can offer evaluations as well. Additionally,
         Section 2511(b) does not require a formal bonding
         evaluation.

In re Z.P., 994 A.2d at 1121 (citations omitted).

      Our Supreme Court has stated:

            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.



                                     -8-
J-S84031-16


            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.

         Where a parent is incarcerated, the fact of incarceration
         does not, in itself, provide grounds for the termination of
         parental rights. However, a parent’s responsibilities are
         not tolled during incarceration. The focus is on whether
         the parent utilized resources available while in prison to
         maintain a relationship with his or her child.           An
         incarcerated parent is expected to utilize all available
         resources to foster a continuing close relationship with his
         or her children.

In re B.,N.M., 856 A.2d at 855 (citations and quotation marks omitted).

“[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.” Id. at 856.

      After careful consideration of the parties’ briefs, the record, and the

decision of the trial court, we affirm on the basis of the court’s opinion. See

Trial Ct. Op. at 4-10 (holding: (1) Father has been incarcerated from the



                                      -9-
J-S84031-16


time Children came into care in September 2012, and, therefore, has been

unable to meet Children’s daily needs; Father’s monthly visits with Children

are insufficient to maintain a parent-child relationship; Father has not made

any attempt to satisfy his FSP objectives; Father has an extensive criminal

history and currently no date is set for his release from prison; Children are

now in a positive environment with their foster parents, who provide for

Children’s daily needs and with whom Children have developed a parent-

child bond; Children have received consistent love, care, support, and

affection from their foster parents; Father’s limited contact with Children

prior   to   his   incarceration   combined    with   his   current   unavailability

demonstrates his inability to undertake his parental duties, to provide a

stable environment for Children, and to significantly contribute to Children’s

psychological health and well-being; the record indicates there was clear and

convincing evidence that Father refused or failed to perform his parental

duties pursuant to § 2511(a)(1), (2), (5), and (8); (2) Children would not

suffer irreparable emotional harm by terminating Father’s parental rights;

the case manager’s testimony indicated that Children have developed a

strong parent-child bond with their foster parents; the case manager also

testified that during visits with Father, P.E.C. was inattentive and routinely

expressed a desire to watch television or play rather than interact with

Father; the case manager attributed P.E.C.’s behavior to being placed in

care at a young age and never having lived with Father; Father never



                                      - 10 -
J-S84031-16


established a parent-child relationship with P.E.C.; Father’s relationship with

E.C. resembled a friendship more than a parent-child relationship; even if

Father was given an opportunity to care for Children, his plans for the future

are speculative; Children can receive the necessary permanency and

stability from their foster parents and, therefore, it is in Children’s best

interest to change the goal to adoption; there is clear and convincing

evidence that DHS met its burden pursuant to § 2511(b)). Accordingly, we

affirm the court’s orders.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2016




                                    - 11 -
           THE COURT      OF COMMON       PLEAS OF PHILADELPHIA COUNTY·

                    FIRST JUDICIAL DISTRICT        OF PENNSYLVANIA

                                FAMILY COURT DIVISION                                   •.. :   .~ ; I   I   •




IN RE: E.C.                                       CP-51-DP-0001663-2012
                                                  CP-51-AP-0000280-2015

IN RE: P.E.C.                                     CP-51-DP-0001664-2012
                                                  CP-51-AP-0000279-2015

APPEAL OF: P.C., Father                           Superior Court
                                                  No. 1297 EDA 2016
                                                  No. 1299 EDA 2016


                                         OPINION
Younge, J.                                                              May 25, 2016
  I.    OVERVIEW

This appeal arises from this Court's Order on March 29, 2016, terminating the parental
                                                                                    ~
rights of P.C. ("father"), pursuant to the petitions filed on behalf of the Department of
Human Services ("OHS") by the City of Philadelphia Solicitor's Office.


Lee W. Kuhlman, attorney for father, filed a timely appeal from the March 29, 2016 Order
terminating father's parental rights with an attached Concise Statement of Errors, Affidavit
of Service, and other related documents.


 II.    FACTUAL AND PROCEDURAL BACKGROUND

A summary of the relevant procedural history is set forth as follows:

The child, E.C., was born on April 21, 2005, and the child P.E.C. was born on January 7,
2008.

On September 3, 2012, OHS received a General Protective Services Report ("GPS")
report which alleged E.C. and P.E.C were left home alone from 11 :30 p.m. until 5:40 a.m.,
without adult supervision. It was further alleged that the children were found in the home
with the apartment door ajar. Police were contacted around 4:00 a.m., but Christina
Molina, E.C. and P.E.C.'s mother ("mother"), did not return to the apartment until 5:40
a.m. Upon mother's return ·to the home, it was alleged that she was intoxicated and she
had instructed E.C. to watch P. E.C. until she returned. It was further reported that mother
was uncooperative with the police and was subsequently arrested on two counts of child
endangerment charges. Pedro Crespo, Jr. ("father"), was incarcerated at the time of
mother's arrest. The children's paternal grandfather, Pedro Crespo Sr. ("grandfather"),
agreed to care for them. It was also alleged that the grandfather was also caring for the
children's sibling, Yanelis. The report was substantiated.

On the same day, OHS obtained an Order of Protective Custody ("OPC") for E.C. and
P.E.C. The police transported    E.C. and P.E.C. to OHS. OHS completed criminal and
Childline clearances for the grandfather and the children were released to his care.

Mother pied guilty to two counts of child endangerment and was sentenced to three years
of probation. Mother subsequently violated her probation on two occasions and was most
recently sentenced on June 26, 2014, to back time confinement.

On September 7, 2012, four days after the children went into grandfather's care, he
telephoned OHS and made the agency aware that he was no longer able to care for E.C.
and .P.E.C. The grandfather stated that he had brought the children to lbeth Solivan, a
family friend who had cared for the children in the past.

On September 11, 2012, OHS visited Ms. Solivan's home. E.C. and P.E.C. appeared to
be safe.

On September 12, 2012, OHS performed clearances on Ms. Solivan's home, however,
the home was found not to be appropriate, and subsequently OHS removed the children
from her care.

Moreover, OHS learned that father was convicted of murder and related charges in April
1993 and sentenced to eleven (11) to thirty (30) years confinement. After his release,
father was later arrested on November 13, 2010, and charged with aggravated assault,
rape, involuntary deviate sexual intercourse, sexual assault, unlawful restraint, indecent
assault, simple assault, and recklessly endangering another person. Mother was named

                                             2
as the complainant and charges were subsequently withdrawn when she repeatedly failed
to appear in court. On August 11, 2011, father was arrested and charged with driving
while under the influence.

On September 14, 2012, a shelter care hearing was held before the Honorable Thomas
Nocella, who lifted the OPC and ordered the temporary commitment to OHS to stand.

An adjudicatory hearing was held on October 1, 2012, before the Honorable Vincent L.
Johnson, who adjudicated E.G. and P.E.C. dependent and committed them to the care
and custody of OHS.

On October 15, 2012, OHS held an initial Family Service Plan meeting ("FSP"). Father's
objectives were visitation, and upon release from prison, father was to make himself
available to.determine his compliance in the areas of 1) housing; 2) employment; 3) drug
and alcohol; 4) mental health; and 5) visits.

The matter was then listed on a regular basis before judges of the Philadelphia Court of
Common Pleas-Family Court Division- Juvenile Branch pursuant to section 6351 of the
Juvenile Act, 42 Pa. C.S.A. §6351, and evaluated for the purpose of determining on
reviewing the permanency plan of the child.

On March 29, 2016, at the termination hearing, Mr. Hill, the children's case manager,
testified that during father's supervised visits at prison with P.E.C., P.E.C. was usually
inattentive and needed to be redirected. P.E.C. also routinely expressed a desire to play
or watch television, instead of interacting with father. Further, Mr. Hill testified that as
between father and E.G., there was better interaction and father and E.G. would discuss
things that happened in the past. Mr. Hill also testified that although father's visits went
well with E.G., and father was happy to see her, father is not currently in the position to
receive E.G. or P.E.C. into his care, due to his current incarceration which could continue
for an additional five years.

At the March 29, 2016, Termination of Parental Rights hearing for father, the Court found
by clear and convincing evidence that father's parental .rights as to E.G. and P.E.C. should
be terminated pursuant to the Juvenile Act. Furthermore, the Court held it was in the best
interest of the children that the goal be changed to adoption.

                                                3
The instant timely appeal of father follows.

 Ill.   STANDARD OF REVIEW

"When reviewing an appeal from a decree terminating parental rights, [the appellate court
is] limited to determining whether the decision of the trial court is supported by competent
evidence." In re K.C.W, 689 A.2d 294, 298 (Pa.Super. 1997). "Absent an abuse of
discretion, an error of law, or insufficient evidentiary support for the trial court's decision,
the decree must stand." Id. "Where a trial court has granted a petition to involuntarily
terminate parental rights, the [appellate] court must accord the hearing judge's decision
the same deference that we would give to a jury verdict. In re Child M., 681 A.2d 793, 800
(Pa.Super. 1996)." "[The appellate court] 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 Matsock, 611 A.2d 737, 742 (Pa.Super.1992).


 IV.    DISCUSSION

The grounds for involuntary termination of parental rights are enumerated in the Adoption
Act at 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).
In the Interest of B. C., 36 A.3d 601 (Pa.Super 2012). If the trial court determines that the
parent's conduct warrants termination under Section 2511 (a), it must then engage in an
analysis of the best interest of the child under Section 2511(b). Id.

In the present case, father's parental rights were terminated based on §§2511 (a)(1 ), (2),
(5), (8) and §2511 (b).

In proceedinqs to involuntarily terminate parental rights the burden of proof is on the party
seeking termination to establish by clear and convincing evidence the existence of
grounds for termination.    In re Adoption of Atencio, 650 A.2d 1064 (Pa. 1994). 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
hesitation of the truth of the precise facts in issue." In re JO. WM., 810 A2d 688; 690
(Pa.Super. 2002).


                                               4
To satisfy section 2511 (a)(1 ), the moving party must produce clear and convincing
evidence of conduct sustained for at least six (6) months prior to filing of the termination
petition, which reveal a settled intent to relinquish parental claim to a child or a refusal or
failure to perform parental duties. It is clear from the record that for a period of six (6)
months leading up to the filing of the Petition for Involuntary Termination, father failed to
perform parental duties for the children. The Court found by clear and convincing
evidence that the father refused or failed to perform his parental duties.

The Superior Court has held that "[a] parent is required to exert a sincere and genuine
effort to maintain a parent-child relationship; the parent must use 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." In re C.M. S.,
832 A.2d 457, 462 (Pa.Super. 2003). Further, the Pennsylvania Supreme Court has
confirmed that "when it comes to incarcerated parents the primary focus under §
2511(a)(1) is whether the parent declined to yield to obstacles created by imprisonment
                                                                       .   ~··
and employed available resources to maintain a relationship with the child." In re Adoption
of S.P., 47 A.3d 817, 828 (Pa. 2012). "[A] parent's responsibilities are not tolled during
his incarceration. Instead, a reviewing court must analyze whether the parent utilized
those resources available while in prison to maintain a relationship with his child." In re
Adoption of Sabrina, 472 A.2d 624, (Pa.Super 1984).

In the instant matter, father has been incarcerated from the time that E.C. and P.E.C.
came into care. (N.T. 3/29/2016, p. 14). As of the March 29, 2016 termination hearing,
father was still incarcerated. Id. While father participated in supervised visits with E.C.
and P.C:, he has been unavailable and unable to meet their daily needs. (N.T. 3/29/2016,
pp. 14, 15, 20). Father's monthly supervised visits with E.C. and P.E.C. are insufficientto
maintain a parent-child relationship with the children. (N.T. 3/29/2016, pp. 14, 15, 20, 24). ·
Further, there is no indication that father made any attempt to satisfy his FSP objectives.

Moreover, the Court finds as indicative that there is no date set for father's release from
incarceration. (N.T. 3/29/2016; p. 30). The Court finds that it is speculative, at best, to
consider if father were granted the opportunity to parent E.C. and P.E.C., whether father
could do so competently, since father was unable to demonstrate his compliance with any

                                              5
of his FSP objectives. (N.T. 3/29/2016, p. 25, 26). Father's unavailability and resulting
lack of compliance does not warrant his reunification with the children. Id.

Father also has a long standing criminal history. (N.T. 3/29/2016, p. 17). Father was
convicted of murder and related charges in April 1993 and sentenced to eleven (11) to
thirty (30) years confinement. Id. Father was released in November 13, 2010. Id. In
addition, on August 11, 2011, father was arrested and charged with driving while under
the influence. Father's continued commitment to engage in illegal activity, shows his
inability to provide a stable environment for E.C. and P.E.C. Id.

The relevant statute and the applicable case law reflect a standard of parental duty which
the father here has clearly failed to meet. Reunification with E.C. and P.E.C. is not a viable
permanency option for father because he has failed to improve the circumstances that
led to his children's placement. Father's long standing incarceration coupled with his
failure to complete     his FSP objectives, make it impossible to achieve the goal of
reunification with the statutory parameters set forth in 23 Pa.C.S. § 2511 (a)(8). (N.T.
3/29/2016, p. 25).

A parent has an affirmative duty to act in his children's best interest. "Parental duty
requires that the parent not yield to every problem, but must act affirmatively, with good
faith interest and effort, to maintain the parent-child relationship to the best of his or her
ability, even in difficult circumstances." In re Dale A., II, 683 A.2d 297, 302 (Pa, Super.
1996).   In reference to parental contact, "to be legally significant, the contact must be
steady and consistent over a period of time, contribute to the psychological health of the
child, and must demonstrate a serious intent on the part of the parent to recultivate a
parent-child   relationship,   and must demonstrate     and willingness    and capacity to
undertake the parenting role". In re D.J.S., 737 A2d 283, 286 (Pa.Super. 1999) (quoting
In re Adoption of Hamilton, 549 A.2d 1291, 1295 (Pa.Super. 1988)).

In the instant case, E.C. and P.E.C. have been in placement since September 28, 2012.
(N.T. 3/2912016, p. 9). The testimony established that E. C-. and P.E.C. are now in a
positive environment with their foster parents and pre-adoptive resource for the· last two
years. (N.T. 3/29/2016, p. 11). Further, the foster parents provide for E.C. and P.E.C.'s
daily needs and the children have developed a parent-child bond with them. (N.T.

                                              6
3/29/2016, pp. 11, 12).        The record also reflects that while father has had monthly
supervised visits with the children during his incarceration. Father's limited contact with
the children prior to his incarceration, coupled with father's unavailability to parent the
children, has demonstrated       father's inability to undertake his parental. duties and to
significantly contribute toward E.C. and P.E.C.'s      psychological health and well-being.
(N.T. 3/29/2016, p. 14-16, 20, 21). In comparison, for the last two years, E.C. and P.E.C.
have received consistent support, care, love and affection from their foster parents who
have consistently provided for them and have demonstrated more fully a parent-child
relationship. (N.T. 3/29/2016, p. 13).

 Section 2511 (a)(2) requires that "repeated and continued incapacity, abuse neglect or
refusal of the parent has caused the child to be without essential parental care, control or
subsistence necessary for her physical or mental well-being and the condition and causes
of the incapacity, abuse, neglect, or refusal, cannot or will not be remedied by the parent.
23 Pa. C.S. §2511 (a)(2).

"It is incumbent     upon   a parent     when separated       from    his children        to maintain
communication      and association     with the child[ren].    This    requires         an affirmative
demonstration of parental devotion, imposing upon the parent the duty to exert himself,
                                                                                  -l;           .
to take and maintain a place of importance in his child[ren]'s [lives]." In re V.E., 611 A.2d
1267, 1271 (Pa. Super. 1992).

Termination of parental rights under §2511 (a)(2) is not limited to affirmative misconduct
but may include acts of refusal as well as incapacity to perform parental duties. In re
A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002).

As of the March 29, 2016 permanency review hearing, E.C and P.E.C. have been in care
for thirty (30) months. (N. T. 3/29/2016). Although, it was noted thatfather had supervised
visits with the children once a month, father was not able to effectuate visits due to his
incarceration; instead, the children were transported to father by an agency social worker,
otherwise visits would not have occurred. (N.T. 3/29/2016, pp. 11, 12).                    Father has
essentially, through his own conduct, been unavailable to parent E.C. and P .E.C. Father's
long standing incarceration     serves as a barrier to reunification, as father is unable to
perform his parental duties.

                                               7
 §2511 (a)(5) requires that:

       (5)    The child has been removed from the care of the parent by the court or
       under a voluntary agreement with an agency for a period of at least six months,
       the conditions which led to the removal or placement of the child continue to exist,
       the parent cannot or will no remedy those conditions within a reasonable time, the
       services or assistance reasonably available to the parent are not likely to remedy
       the conditions which led to the removal or placement            of the child within a
       reasonable period of time and termination of parental rights would best serve the
       needs and welfare of the child.

§2511 (a)(B) states:

       (8)    The child has been removed from the care of the parent by the court or
       under a voluntary agreement with an agency, twelve (12) months or more has
       elapsed from the date of the removal or placement, the conditions which Jee( to the
       removal or placement of the child continue to exist and termination of the parental
       rights would serve the best needs and welfare of the child.

The evidence, as discussed above, equally support the Court's conclusion to terminate
father's parental rights. §2511 (a)(5) and (a)(8).

In order to terminate the parental rights, the party seeking termination must prove by clear
and convincing evidence that the termination is in the best interest of the child. 23 Pa.
C.S. §2511 (b); In re Bowman, 647 A.2d 217 (Pa. Super. 1994). The best interest of the
child is determined after consideration of the needs and welfare of the child. The trial court
must examine the individual circumstances of each case and consider all explanations
offered by the parent facing termination of this parental rights to determine if the evidence
in the light of the totality of the circumstances clearly warrant involuntary termlnation.

When determining the best interest of the child, many factors are to be analyzed, "such
as love, comfort, security, and stability. In re Adoption ofT.BB., 835 A.2d 387, 397 (Pa.
Super. 2003). § 2511 (b).




                                              8
The trial court must take account whether a natural parental bond exists between child
and parent, and whether termination would destroy an existing, necessary and beneficial
relationship. In re C.S., 761 A.2d 1197(Pa. Super. 2000).

 In the instant matter, the Court found that E.C. and P.E.C. would not suffer irreparable
emotional harm if father's parental rights were terminated. (N.T. 3/29/2016, p. 36). The
testimony of the case manager, Mr. Hill, established that E.C. and P.E.C. are with foster
parents who have developed a strong parent-child bond with them. (N.T. 3/29/2016, pp.
15, 16). In fact, the case manager noted that during father's visits with P.E.C., P.E.C. was
usually inattentive and needed to be redirected. P.E.C. also routinely expressed a desire
to play or watch television,      instead of interacting with father. Based on Mr. Hill's
observations and in his opinion, P.E.C.'s inattentiveness stemmed from both the early
age at which P.E.C. came into care, and that P.E.C. never resided with father; therefore
father never established a parent-child relationship with P.E.C. Instead, Mr. Hill observed
such a relationship between P.E.C. and his pre-adoptive foster parents.

Further, although Mr. Hill testified that as between father and E.C., there was better
interaction, father's relationship with E.C. resembled more of a friendship than a parent-
child relationship. (N.T. 3/29/2016, p. 13). Moreover, although during visits father and
E.C. would discuss things that happened in the past, and father seemed pleased to see
E.C., father is not currently in the position to reunify with E. C. or P .E.C., due to his current
incarceration which could continue for an additional five years. Father's exact date of
release is unknown.

Moreover, even if father were given the opportunity to care for E.C. and P.E.C., father's
plans for the future are speculative. E.C. and P.E.C.'s life does not come to a standstill
while father serves out his term. One of the goals of the Adoption and Safe Families Act
is to move children      promptly to safe families so that they can be provided with
permanency and stability. This Court finds that E.C. and P.E.C. can receive such
permanency in their pre-adoptive foster home. Therefore, this Court found, based on all
the evidence presented that terminating the parental rights of father as to E.C. and P.E.C.
would not cause them irreparable harm due to their parent-child bond with their foster



                                                9
parents to whom they look to meet their daily needs. Accordingly, E.C. and P.E.C. should
be freed for adoption, as it is in their best interest. (N.T. 3/29/2016, p. 44).

The Trial Court found by clear and convincing evidence that the Department of Human
Services met its statutory burden pursuant to§ 23 Pa.C.S. §2511 (a) & (b) and that_itwas
in the best interest of the children to change the goal to adoption. (N.T. 3/29/2016, p. 39).

 V.    CONCLUSION

For the foregoing reasons, the Court finds that the Department of Human Services met
its statutory burden by clear and convincing evidence regarding the termination of
parental rights pursuant to 23 Pa. C.S. §2511 (a)(1), (2), (5) and (8) and §2511(b).
Furthermore, the Court finds that its ruling will not cause E.C or P.E.C. to suffer irreparable
harm, and it is in the best interest of the children, based on the testimony regarding the
children's safety, protection, mental, physical and moral welfare, to terminate father's
parental rights.

Accordingly, the Trial Court's Order entered on March 29, 2016, terminating the parental
rights of father, P .C., should be properly affirmed.




                                                          By the Court




                                              10
          IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

                     FIRST JUOIClAL DISTRICT OF PENNSYLVANIA

                                 FAMILY COURT DIVISION



IN RE: E.C.                                          CP-51-DP-0001663-2012
                                                     CP-51-AP-0000280-2015

IN RE: P.E.C.                                        CP-51-DP-0001664-2012
                                                     CP-51-AP-0000279-2015

APPEAL OF: P.C., Father                              Superior Court
                                                     No. 1297 EDA 2016
                                                     No. 1299 RDA 2016


                                    PROOF OF SERVICE

I hereby certify that this court is serving, today   5}2J5))
                                                       I
                                                             k2, the foregoing   Opinion, by
regular mail, upon the following person(s):

Lee W. Kuhlmann, Esq.
1800 JFK Blvd., Ste 300
Philadelphia, PA 19103-7402

Tara B. Fung, Esq.
City of Philadelphia Law Department
1515 Arch Street, Fl., 15
Philadelphia, PA 19102-1595

Edelina .Schuman, Esq.
1501 Arch Street, 11th Fl.
Philadelphia, PA 19102

Janice M. Sulman, Esq.
1501 Arch Street, 11th Fl.
Philadelphia, PA 19102
