J-S69017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: D.A.C.N.,              :   IN THE SUPERIOR COURT OF
    A MINOR                                    :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: H.B.C., FATHER                  :
                                               :
                                               :
                                               :
                                               :   No. 1905 EDA 2019


                  Appeal from the Order Entered June 13, 2019,
              in the Court of Common Pleas of Philadelphia County,
                Family Court at No(s): CP-51-AP-0000387-2019,
                            FID: 51-FN-004746-2011.


BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                         FILED FEBRUARY 11, 2020

        H.B.C. (Father) appeals the order terminating his parental rights to his

two-year-old daughter, D.A.C.N. (Child), pursuant to the Adoption Act, 23

Pa.C.S.A. § 2511(a)(2), (5), (8) and(b).1 We affirm.

        The record discloses the following relevant factual and procedural

history.    Child, born in February 2017, first came to the attention of the

Philadelphia Department of Human Services (DHS) when Mother tested

positive for phencyclidine (PCP) at the time of Child’s birth.     At that time,

Father was incarcerated.         DHS obtained a protective custody order and

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1The trial court also terminated the parental rights of D.N. (Mother). Her
appeal is listed before a separate panel of this Court.
J-S69017-19



removed Child from Mother’s care. At the ensuing shelter hearing, the court

determined that Mother and Child were receiving in-patient treatment and

reunified Child and Mother.

      The case became active again in December 2017, following reports that

the parents were using illicit drugs and that Father was verbally abusive. The

latter incident triggered police intervention after Father threatened to kill

everyone at the scene. DHS obtained a protective custody order, marking the

last time Father had contact with Child.    At the shelter hearing, the court

referred Father to the clinical evaluation unit (CUA) for a drug screen. Father

tested positive for marijuana and PCP. Child was adjudicated dependent on

February 1, 2018.

      Throughout the dependency case, Father never complied with Child’s

court-ordered permanency plan.        Following the adjudication, the court

referred Father to the Achieving Reunification Center (ARC) for appropriate

services, but he failed to attend the intake evaluation. Although Father was

referred to another drug test, he did not comply.     The court also referred

Father for parenting, housing, and financial services, and it further ordered

Father to engage in dual diagnosis treatment. Father failed to participate with

any of these programs.

      In January 2019, Father was arrested on a bench warrant for a probation

violation; he had been on probation following a 2015 guilty plea to burglary




                                     -2-
J-S69017-19



and conspiracy. Father was sentenced to eleven and a half months to twenty-

three months for the probation violation.2

        On May 28, 2019, DHS filed termination and goal-change petitions. On

June 13, 2019, the court conducted an evidentiary hearing. The court granted

the petitions and terminated Father’s parental rights under 23 Pa.C.S.A. §

2511(a)(2), (5), (8) and (b). Father presents this timely-filed appeal.

        Father does not appeal the goal-change determination, nor does he

contend that DHS failed to meet its burden under § 2511(b). Instead, Father

raises the following issue for our review:

           Whether the trial court committed reversible error when it
           involuntarily terminated Father’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)(2), (5) and (8).

Father’s Brief at 4.

        In reviewing an appeal from an order terminating parental rights, we

adhere to the following principles:

           [A]ppellate courts must apply an abuse of discretion
           standard when considering a trial court's determination of a
           petition for termination of parental rights. As in dependency
           cases, our standard of review requires an appellate court to
           accept the findings of fact and credibility determinations of
           the trial court if they are supported by the record. In re:
           R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings
           are supported, appellate courts review to determine if the
           trial court made an error of law or abused its
           discretion. Id.; In re R.I.S., 36 A.3d 567, 572 (Pa.
           2011) (plurality). As has been often stated, an abuse of
____________________________________________


2   The record is unclear as to precisely when his sentence began.

                                           -3-
J-S69017-19


         discretion does not result merely because the reviewing
         court might have reached a different conclusion. Id.; see
         also Samuel–Bassett v. Kia Motors America, Inc., 34
         A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630,
         634 (Pa. 2003). Instead, a decision may be reversed for an
         abuse of discretion only upon demonstration of manifest
         unreasonableness, partiality, prejudice, bias, or ill-will. Id.

         As we discussed in R.J.T., there are clear reasons for
         applying an abuse of discretion standard of review in these
         cases. We observed that, unlike trial courts, appellate
         courts are not equipped to make the fact-specific
         determinations on a cold record, where the trial judges are
         observing the parties during the relevant hearing and often
         presiding over numerous other hearings regarding the child
         and parents. R.J.T., 9 A.3d at 1190. Therefore, even
         where the facts could support an opposite result, as is often
         the case in dependency and termination cases, an appellate
         court must resist the urge to second guess the trial court
         and impose its own credibility determinations and
         judgment; instead we must defer to the trial judges so long
         as the factual findings are supported by the record and the
         court's legal conclusions are not the result of an error of law
         or an abuse of discretion. In re Adoption of Atencio, 650
         A.2d 1064, 1066 (Pa. 1994).

In re I.E.P., 87 A.3d 340, 343–344 (Pa. Super. 2014) (quoting In re

Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012)).

      At the termination hearing, the burden is upon the petitioner to prove

by clear and convincing evidence that the asserted grounds for seeking the

termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.

Super. 2009). We have explained that 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




                                      -4-
J-S69017-19



hesitance, of the truth of the precise facts in issue.’” Id. (quoting In re J.L.C.,

837 A.2d 1247, 1251 (Pa. Super. 2003)).

      This Court has explained that the focus in terminating parental rights

under section 2511(a) is on the parent, but under section 2511(b), the focus

is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.

2008) (en banc).     As Father does not contest the second prong of the

termination analysis under Section 2511(b), we will only address the first

prong under Section 2511(a). Here, the court terminated Father’s parental

rights pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5) and (8).      We note that this

Court may affirm the trial court's decision regarding the termination of

parental rights with regard to any one subsection of section 2511(a). In re

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).             Thus, we may

narrow our focus even further, confining our discussion to subsections (a)(2),

which provides:

         § 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:

          (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.

23 Pa.C.S.A. § 2511(a)(2).




                                       -5-
J-S69017-19



       Our Supreme Court established a three-part test when terminating a

parent’s rights under Section 2511(a)(2).        The petitioner must satisfy the

following criteria:

          (1) A parent’s repeated and continued incapacity, abuse,
          neglect or refusal must be shown; (2) such incapacity,
          abuse, neglect or refusal must be shown to have caused the
          child to be without essential parental care, control or
          subsistence; and (3) it must be shown that the causes of
          the parent’s incapacity, abuse, neglect or refusal cannot or
          will not be remedied.

See In re A.D., 93 A.3d 888, 896 (Pa. Super. 2014) (citing In re Geiger,

331 A.2d 172, 173-174 (Pa. 1975)).

       The trial court found that DHS established clear and convincing evidence

warranting the termination of Father’s rights:

          Throughout the time that Child has been in the custody of
          DHS, Father’s [reunification] goals were dual diagnosis,
          random drug screens, domestic violence [], and to make
          outreach to CUA.       […] Father never provided any
          documentation that showed he successfully completed any
          type of domestic violence program. Father completed
          intake at ARC on February 26, 2018, but did not engage and
          complete the parenting, housing, and financial counseling
          programs. […] Father also indicated that he only completed
          drug and alcohol while incarcerated, but failed to complete
          the mental health component of his dual diagnosis
          objective. Father admitted that between the adjudicatory
          hearing in April 2018[3] and his incarceration in January
          2019, Father never attempted to engage in dual diagnosis
          services. [At the time of the shelter hearing], Father
          completed the only random drug screen for the life of the
          case. Father has not been in contact with CUA since April

____________________________________________


3We note that the adjudication hearing occurred in February 2018. The first
permanency review occurred in April 2018.

                                           -6-
J-S69017-19


         2018. Father acknowledged that he failed to maintain
         contact with CUA. […] During the life of the case, Father
         has not visited Child. Father’s visitation was suspended in
         April 2018 and has remained suspended for the life of the
         case. Father has been incarcerated since January 2019.
         Father indicated that the sentence he was given for the
         violation of probation was between eleven and a half months
         to twenty-three months. Father indicated that he does not
         have housing arranged for his release from prison. Father
         was aware of his objectives and that his visitation would be
         reinstated if he engaged in his objectives, but Father refused
         to comply.

T.C.O., 9/11/19, at 7-8 (citations to the record omitted).

      On appeal, Father acknowledges his failure to comply with the

permanency plan, but notes that he completed a drug program while in prison.

The crux of his argument is that he has attempted to utilize all available

resources while in prison. See Father’s Brief at 13.

      Although not a litmus test, a parent’s incarceration is relevant to the

Section 2511(a)(2) analysis and, depending on the circumstances of the case,

a petitioner may use incarceration as evidence of a parent’s inability to provide

the “essential parental care, control or subsistence” that the section

contemplates. See In re A.D., 93 A.3d at 897 (citing 23 Pa.C.S.A. §

2511(a)(2)).   Incarceration does not relieve a parent of the obligation to

perform parental duties. In re J.T.M., 193 A.3d 403, 409 (Pa. Super. 2018).

Rather, an incarcerated parent must “utilize available resources to continue a

relationship” with his or her child. Id. (quoting In re Adoption of S.P., 47

A.3d 817, 828 (Pa. 2012)) (supra).




                                      -7-
J-S69017-19



      Here, Father claims that his completion of the prison program

demonstrated that he utilized available resources, and so his rights should not

be terminated under Section 2511(a)(2). He wants this Court to find that he

parented as much as he was able. This argument blatantly ignores the prior

eleven      months   between   his   incarceration   and   Child’s   dependency

adjudication, when Father failed to comply with any part of the permanency

plan – to say nothing of the preceding two months between the adjudication

and Child’s removal from the home, which was the last time Father sought to

have contact with Child. It would be one thing if the record demonstrated

that, prior to his incarceration, Father had ample ability to provide parental

care, that he was able to maintain a relationship with Child while incarcerated,

and that he would be able to resume parental care upon his imminent release.

Instead, the record indicates the opposite. Father either refused to parent or

was incapable of parenting before he went to prison, he has done next to

nothing while incarcerated, and, notwithstanding his eventual release from

prison, the conditions of the incapacity or refusal cannot or will not be

remedied.

      Accordingly, we conclude that the trial court did not abuse its discretion

by terminating involuntarily Father’s parental rights to Child pursuant to

Section 2511(a)(2). Therefore, we affirm the court’s order granting DHS’s

petition.

      Order affirmed.

      Judge Colins joins the memorandum.

                                      -8-
J-S69017-19



Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/20




                                      -9-
