J-S69015-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: T.R.C., A MINOR                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: I.T., NATURAL FATHER

                                                      No. 947 WDA 2017


                      Appeal from the Order May 31, 2017
               In the Court of Common Pleas of Allegheny County
               Orphans' Court at No(s): CP-02-AP-0000189-2016


BEFORE: BOWES, RANSOM, JJ. and STEVENS P.J.E.*

MEMORANDUM BY BOWES, J.:                           FILED JANUARY 05, 2018

       I.T. (“Father”) appeals the orphans’ court order terminating his

parental rights to his daughter, T.R.C.1 We affirm.

       T.R.C. was born on October 21, 2014, while K.D.V. (“Mother”) was

married to K.T.M. No father is identified on the birth certificate, and K.T.M.

denied paternity.      Allegheny County Office of Children, Youth and Families

(“CYF”) became aware of the family five months later, when Mother, who

has an extensive criminal record, was involved in a series of incidents in

downtown Pittsburgh. Specifically, on March 15, 2015, T.R.C. fell out of her

baby carriage and became lodged in a revolving door.              Mother was
____________________________________________


1
   The child’s mother, K.D.V., died on May 1, 2017, two days prior to the
evidentiary hearing.



* Former Justice specially assigned to the Superior Court.
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intoxicated, and after T.R.C. was extricated from the door, Mother returned

the infant to the stroller without securing her. Shortly thereafter, T.R.C. was

thrown from the stroller a second time while Mother was crossing a busy

street.2 T.R.C. sustained a bruise on the left side of her face and abrasions

on her forehead, and she was admitted to Children’s Hospital of Pittsburgh

for observation.     CYF obtained emergency custody the following day, and

placed T.R.C. in foster care upon her discharge from the hospital. She has

remained in the agency’s custody since that date. CYF initially placed T.R.C

in kinship care with her maternal grandmother, but during August 2016, she

was transferred to her current pre-adoptive foster home.

       The juvenile court adjudicated T.R.C. dependent on April 17, 2015.

Approximately two days earlier, the agency discovered that Father, who has

been incarcerated since August 2014 and ineligible for parole until 2024,

claimed to have previously executed an acknowledgment of paternity and

mailed it to the location on the self-addressed envelope enclosed in a

package he received while in jail. However, since CYF had no record of the

document, it requested that Father submit to genetic testing to confirm



____________________________________________


2
  As a result of this episode, Mother was charged with aggravated assault,
endangering the welfare of children, simple assault, neglect of a care-
dependent person, recklessly endangering another person, disorderly
conduct, and public drunkenness.



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paternity.    Father routinely rejected their entreaties,3 and to add to the

confusion, while Father’s paternity was subsequently confirmed for the

purposes of his child-support obligations, the juvenile court vacated the

domestic-relations order because Mother’s husband had not yet been

genetically excluded from being a potential father.                The upshot of the

uncertainty     surrounding     T.R.C.’s       paternity   was   that   CYF   effectively

disqualified Father from participating in the dependency proceedings.

During April 2017, Father executed and filed the required acknowledgment

of paternity. Id. at 7.

       Meanwhile, on October 27, 2016, CYF filed a petition to terminate

Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a) (1), (2), (5), and

(8), and § 2511(b).           CYF provided Father notice of the involuntary

termination proceedings and the orphans’ court appointed counsel for


____________________________________________


3
  CYF advised Father that it was required to confirm paternity before it could
forward him information about the dependency proceedings, permit him to
exchange photographs, or schedule visitations between T.R.C. and him or
the paternal grandmother. N.T., 5/3/17, at 24. It sent representatives to
the jail in order to perform genetic testing, but Father refused to participate.
Id. at 80. Father purported to rebuff genetic testing for “religious reasons”
but he was not able to articulate the precise bases of his objections. Id. at
83. During the hearing on the petition to terminate his parental rights, he
proffered the vague explanation, “it's prohibited, like, for a person that's
Muslim to, in so many words, go against the decree of what God gave you.”
Id. Despite the orphans’ court’s prodding inquiry, Father was unable to
explain how his ambiguous statement applied in this scenario. Id. at 84.




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Father.4   During the ensuing hearing, CYF presented the testimony of the

current and former case workers assigned to the family.                As it relates to

Father’s   instant    complaint,     both      case   workers   testified   about   their

interactions with Father during the dependency proceedings and his

persistent refusal to acquiesce to genetic testing. The parties stipulated to

the admission of two psychological reports prepared by the court-appointed

psychologist, Neil D. Rosenblum, Ph.D., who opined, “it is my clinical opinion

that . . . adoption is not only consistent with T.R.C.'s needs and welfare, but

in my clinical opinion vital to her continued developmental growth and the

only way to ensure sustained emotional security for T.R.C.” See CYF Exhibit

2b, Psychological Report, 8/23/16, at 3.
____________________________________________


4
  The guardian ad litem, Cynthia Moore, Esquire, represented T.R.C. during
the contested termination proceedings. While Father does not challenge
Attorney Moore’s role in the termination proceedings, we are cognizant of
our Supreme Court’s recent decision in In Re Adoption of L.B.M., 161 A.3d
172 (Pa. 2017), wherein the majority of the justices held that 23 Pa.C.S. §
2313(a) required that counsel be appointed to represent the legal interests
of any child involved in a contested involuntary termination proceeding. The
High Court recognized, however, that Part II–B of the opinion was not
precedential and did not overrule our holding in In re K.M., 53 A.3d 781
(Pa.Super. 2012). That decision held that a guardian ad litem who is an
attorney may act as counsel so long as the dual roles do not create a conflict
between the child’s best interest, as determined by the trial court, and the
child’s legal interest, which the High Court defined as synonymous with his
or her preferred outcome.

Instantly, Attorney Moore supported the termination of Father’s parental
rights as serving T.R.C.’s best interests. Our review of the record does not
reveal any conflict between this position and the legal interests of the non-
verbal two-and-one-half-year-old.



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      Father testified on his own behalf and presented the testimony of his

mother, L.P. (“Paternal Grandmother”).      He maintained that he contacted

CYF at the outset of the dependency proceedings but the agency failed to

exercise reasonable efforts to assist him in reunifying with his daughter.

Stated plainly, Father asserts that he should not be penalized for the CYF’s

inaction.

      After considering the evidence, the orphans’ court entered the above-

referenced order terminating      Father’s parental    rights   pursuant   to   §

2511(a)(2) and (8).       The orphans’ court chastised CYF for what it

characterized as the agency’s inexcusable treatment of Father during the

dependency proceedings.      It determined that, by denying Father services

and barring his participation in the juvenile court proceedings, CYF undercut

its claim for the involuntary termination of parental rights under §

2511(a)(1) and (a)(5).     Tellingly, both of those provisions implicate the

agency’s services, whether directly or indirectly. Thus, as the orphans’ court

accurately highlighted, CYF’s petition failed as to those sections.

      However, the orphans’ court noted that CYF’s conduct was irrelevant

under at least one of the grounds for termination the agency asserted under

§ 2511. The court reasoned that, while CYF should have permitted Father

limited access to the dependency proceedings so that he could request the

juvenile court to accept his purported acknowledgement of paternity,

Father’s extensive record of incarceration and the fact that he will not be

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eligible for release for at least seven more years, constitute a repeated

parental incapacity that cannot be remedied as outlined in § 2511(a)(2).

Thus, notwithstanding the fact that CYF neglected to provide Father any

reunification services during the dependency proceedings, the orphans’ court

concluded that the agency established valid grounds to terminate Father’s

parental rights under the Adoption Act.

      This timely appeal followed.     Father complied with Pa.R.A.P. 1925

(a)(2)(i) by filing a concise statement of errors complained of on appeal

wherein he asserted a single issue, which he reiterates on appeal as follows:

“Whether the trial court erred in determining that CYF has established

grounds to terminate [F]ather’s parental rights pursuant to 23 Pa.C.S. [§]

(a)(2) and (8).” Appellant’s brief at 4.

      The crux of Father’s contention is that, by neglecting to invite him to

participate in the juvenile court proceedings, CYF tainted the termination

proceedings before the orphans’ court.     Father reasons that the orphans’

court’s acknowledgment of CYF’s inaction was inadequate to dissuade the

agency from erecting similar obstacles in the future that will impede the

participation of similarly situated parents. He opines, “If we have recognized

that parents’ rights are fundamental, as we have, we must also recognize

that these rights must be diligently and scrupulously safeguarded.” Father’s

brief at 12. No relief is due.




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      The pertinent scope and standard of review of an order terminating

parental rights is as follows:

          Appellate courts are required 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 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) (cleaned up). It is equally well-

established that, “in termination cases, the burden is upon the petitioner to

prove by clear and convincing evidence that its asserted grounds for seeking

the termination of parental rights are valid.” In re S.H., 879 A.2d 802, 806

(Pa.Super. 2005).

      As noted, supra, the grounds for termination of a parent’s parental

rights are governed by 23 Pa.C.S. § 2511 (a) and (b), which provides in

pertinent part as follows:

      (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

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           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.

              ....

          (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 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.

       We need only agree with the orphans’ court’s decision as to one

subsection of 23 Pa.C.S. § 2511(a) and subsection (b) in order to affirm the

termination of parental rights.5 In re B.L.W., 843 A.2d 380, 384 (Pa.Super.
____________________________________________


5
  As Father does not challenge the orphans’ court’s needs-and-welfare
analysis pursuant to § 2511(b), we do not address it. See In re
M.Z.T.M.W., 163 A.3d 462, 466 n.3 (Pa.Super. 2017) (explaining that this
Court need not review orphans’ court’s § 2511(b) analysis sua sponte).



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2004) (en banc).            Instantly, the record supports terminating Father’s

parental rights under § 2511(a)(2).6

       To terminate parental rights pursuant to § 2511(a)(2), the moving

party must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect or refusal;

(2) such incapacity, abuse, neglect or refusal caused the child to be without

essential parental care, control or subsistence necessary for his physical or

mental well-being; and (3) the causes of the incapacity, abuse, neglect or

refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa.Super. 2003).              Parents are required to make diligent

efforts   towards     the    reasonably    prompt     assumption   of   full   parental

responsibilities.    In re A.L.D. 797 A.2d 326, 340 (Pa.Super. 2002).                A

parent's vow to cooperate, after a long period of uncooperativeness

regarding the necessity or availability of services, may properly be rejected

as untimely or disingenuous. Id.

       As it relates to Father’s chronic incarceration throughout his daughter’s

life, in In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme Court

clarified the case law addressing the effects of incarceration upon a parent’s

____________________________________________


6
  Although the orphans’ court also determined that CYF’s inaction did not
preclude it from finding that the agency established the statutory grounds
outlined in § 2511(a)(8), we need not address the propriety of that
conclusion in light of our reliance on § 2511 (a)(2).



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ability to provide essential care and control pursuant to § 2511(a)(2). After

providing a scholarly review of the relevant case law, the High Court

reasoned,

      [W]e hold that incarceration is a factor, and indeed can be a
      determinative factor, in a court's conclusion that grounds for
      termination exist under § 2511(a)(2) where the repeated and
      continued incapacity of a parent due to incarceration has caused
      the child to be without essential parental care, control or
      subsistence and that the causes of the incapacity cannot or will
      not be remedied.

Id. at 828. The Court expounded,

             In line with the expressed opinion of a majority of justices
      in [In re R.I.S., 36 A.3d 567 (Pa. 2011)], our prior holdings
      regarding incapacity, and numerous Superior Court decisions, we
      now definitively hold that incarceration, while not a litmus test
      for termination, can be determinative of the question of whether
      a parent is incapable of providing “essential parental care,
      control or subsistence” and the length of the remaining
      confinement can be considered as highly relevant to whether
      “the conditions and causes of the incapacity, abuse, neglect or
      refusal cannot or will not be remedied by the parent,” sufficient
      to provide grounds for termination pursuant to 23 Pa.C.S.
      § 2511(a)(2).

Id. at 830.    Hence, it is now beyond cavil that a parent’s incarceration is

relevant to the section (a)(2) analysis and, depending on the circumstances

of the case, it may be dispositive of a parent’s ability to provide the

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

contemplates. See 23 Pa.C.S. § 2511(a)(2). This case presents one such

scenario.




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       Father was incarcerated during June 2014, he will not serve his

minimum sentence until 2024., and his actual release could be delayed until

2034, his maximum sentence.7            It is clear from the testimony during the

evidentiary hearing that Father’s incarceration is tantamount to a continued

incapacity that precludes him from providing T.R.C. the essential parental

care, control and subsistence that she requires.        Moreover, the incapacity

will continue for at least ten years and could extend until she is a twenty-

year-old woman. Thus, the record sustains the orphans’ court’s finding that

Father’s prolonged imprisonment is the determinative factor under §

2511(a)(2). Plainly, Father’s continued incapacity due to incarceration has

caused T.R.C. to be without essential parental care, control or subsistence

and regardless of any services CYF failed to provide, he cannot remedy the

causes of the incapacity any sooner than 2024.

       Next, we address Father’s primary complaint that the agency failed to

exercise reasonable efforts to promote his reunification with T.R.C. due to

his prolonged incarceration. Our High Court addressed this precise issue in

In re D.C.D., 105 A.2d 662 (Pa. 2014), and held that it was improper to

deny a petition for the termination of parental rights solely due to an

agency’s failure to provide a parent reasonable efforts toward reunification.
____________________________________________


7
  At criminal action number CP-02-CR-0011051-2014, Father was sentenced
to a term of ten to twenty years imprisonment for criminal conspiracy to
commit robbery with serious bodily injury.



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Id.   Specifically, the Court ruled, “No Pennsylvania or federal provision

requires delaying permanency for a child due to failure of an agency to

provide reasonable services, when a court has otherwise held that grounds

for termination is in the best interests of the child by clear and convincing

evidence.” Id. at 666. It reasoned that such sanction was contrary to the

child’s best interest.

      The salient facts of In re D.C.D. are as follows. The agency sought to

terminate the parental rights of an incarcerated father who was not

identified as a birth parent when his daughter was born during 2011. The

father was serving an aggregate term of 7 ¾ to sixteen years imprisonment,

and he was not eligible for parole until 2018.          During the ensuing

dependency proceedings, the agency provided the father few services and

offered only one video visitation and one in-person visitation. Recognizing

that the father's parenting incapacity would continue at least until his

daughter would be seven years old and could persist until his maximum

release date, the trial court granted the agency’s petition for involuntary

termination of parental rights pursuant to § 2511(a)(2).         The father

appealed and we reversed, finding that the trial court erred in terminating

the father's parental rights when the agency failed to provide him with

reasonable efforts to promote reunification.   Our Supreme Court granted

review, reversed our decision, and reinstated the trial court's order

terminating the father's parental rights.

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     In reversing our decision, the Supreme Court concluded that the

agency’s “reasonable efforts” were not elements of the statutory grounds to

terminate parental right pursuant to § 2511(a)(2).         The High Court

reasoned,

     [A] child welfare agency cannot refuse reasonable efforts to an
     incarcerated parent and then point to the resulting erosion in the
     parental bond created by the agency as justification for
     termination of parental rights. The fact that such a scenario can
     be articulated, however, does not transform the provision of
     reasonable efforts to reunite parents and children into a
     requirement for termination. Nothing in the law goes so far, and
     the Superior Court erred in so holding.

            Further, while we acknowledge that other states have
     included reasonable efforts as either an element or merely a
     factor in their termination provisions, the Pennsylvania
     legislature has not incorporated reasonable efforts into the
     language of 23 Pa.C.S. § 2511(a)(2), and it would be improper
     and, indeed, unwise for this Court to add such an element to the
     statute by judicial fiat. In contrast, we recognize that the
     legislature included consideration of the reasonable services
     available to the parent in regard to another ground for
     termination, subsection 2511(a)(5) (providing for consideration
     of whether “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”).

Id. at 672-73. Hence, the Supreme Court concluded that this Court erred in

imposing the additional element of reasonable efforts under 23 Pa.C.S. §

2511 (a)(2), and in vacating the termination of parental rights despite the

trial court’s finding that the father was not capable of parenting and could

not remedy the incapacity.




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      For identical reasons, we reject Father’s complaint herein.   Although

CYF failed to exercise reasonable efforts, a fact that the orphans’ court

highlighted in chastising the agency for its derogation, the lack of

reunification services does not negate the fact that Father’s prolonged

incarceration will continue to prevent him from providing essential parental

care of T.R.C. until 2024 at the earliest. Thus, consistent with our Supreme

Court’s holding in In re D.C.D., supra, we conclude that the orphans’ court

did not err in terminating Father’s parental rights pursuant to § 2511(a)(2)

under the facts of this case.

      For all of the foregoing reasons, we affirm the orphans' court's order

terminating Father's parental rights to T.R.C. pursuant to 23 Pa.C.S. §

2511(a)(2) and (b).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2018




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