J-S15014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.C.M., A MINOR                 IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA




APPEAL OF: A.M., FATHER                             No. 2019 EDA 2015


                Appeal from the Decree entered May 27, 2015,
      in the Court of Common Pleas of Philadelphia County, Family Court,
                       at No(s): CP-51-AP-0000608-2013
                           FID# 51-FN-001963-2011

BEFORE: BENDER, P.J.E, OLSON, and PLATT, * JJ.

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 03, 2016

        A.M. (“Father”) appeals from the decree entered May 27, 2015, in the

Court    of   Common    Pleas   of   Philadelphia   County,   which   involuntarily

terminated his parental rights to his minor daughter, A.C.M. (“Child”), born

in August of 2007.1, 2 We affirm.

        The trial court summarized the relevant factual and procedural history

of this matter as follows.

        Father has a long history of being in and out of jail. Father has
        been found guilty or pleaded guilty for different criminal offenses

*
    Retired Senior Judge assigned to the Superior Court.
1
  That same day, the trial court entered a separate decree confirming the
consent of Child’s mother, K.E., to the adoption of Child. K.E. is not a party
to the instant appeal.
2
  We note that the certified record in this case was originally due on July 27,
2015. However, this Court did not receive the record from the trial court
until well past the due date, on October 9, 2015. As a result, the briefing
schedule in this matter was delayed by over two months.
J-S15014-16


      going back to 1995. … Father was not incarcerated at the time
      Child was born.       Father was arrested shortly thereafter on
      November 25, 2008. Father estimates the last time[] he saw
      Child was in 2009.          The family became known to [the
      Philadelphia Department of Human Services (“DHS”)] on July 19,
      2011, when an Order of Protective Custody (“OPC”) was
      obtained. Child was adjudicated dependent on August 2, 2011.
      Child currently remains in the same foster home [that she was
      placed in] when she was adjudicated.          At the adjudication
      hearing, the trial court ordered DHS to conduct a Parent Location
      Search for Father (“PLS”).          Father’s whereabouts [were]
      unknown.         However, Father had been released from
      incarceration in June 2011, and he was living in a halfway house.
      Father was re-arrested in December of 2011. From June 2011
      to December 2011, Father did not attempt to visit his Child.
      [The] DHS case record indicates that Father was not part of the
      Child’s life since the time Child was born. Father became known
      when he contacted DHS in 2012. At the Permanency Review
      hearing on April 24, 2012, the trial court found that Father was
      incarcerated. Again, at the Permanency Review hearing on
      October 23, 2012, Father was still incarcerated. [I]n December
      2012, Father was sentenced for his December 2011 arrest.
      Father received a sentence of thirty months to seventy-two
      months confinement.        Furthermore, on February 11, 2013,
      Father was sentenced to one to two years for escape, another
      offense resulting from his arrest [in] December 2011.
      Throughout this case, the trial court has found reasonable efforts
      on behalf of DHS.

Trial Court Opinion, 10/7/2015, at 1-2 (citations to the record omitted).

      On October 10, 2013, DHS filed a petition to involuntarily terminate

Father’s parental rights to Child. A termination hearing was held on May 27,

2015, during which the trial court heard the testimony of Father and DHS

social worker, Ms. Barbara Forrest.    Following the hearing, the trial court

entered its decree terminating Father’s parental rights to Child involuntarily.

Father timely filed a notice of appeal on June 26, 2015, along with a concise

statement of errors complained of on appeal.


                                     -2-
J-S15014-16


      Father now raises the following claim for our review.       “Whether the

trial court erred in terminating Father, [A.M.’s], parental rights, where the

trial record established [DHS] failed to make reasonable efforts towards the

goal of reunification.”    Father’s brief at 2 (unnecessary capitalization

omitted).

      We consider Father’s claim mindful of our well-settled standard of

review.

      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
      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 and quotation marks

omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, 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


                                      -3-
J-S15014-16


     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).

     In this case, the trial court terminated Father’s parental rights

pursuant to Sections 2511(a)(1), (2), and (b). We need only agree with the

trial court as to any one subsection of Section 2511(a), as well as Section

2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.

2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).          Here, we

analyze the court’s decision to terminate under Sections 2511(a)(2) and (b),

which provide 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 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.

                                    ***

     (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


                                   -4-
J-S15014-16


     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(a)(2), (b).

     We first address whether the trial court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(a)(2).

     In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
     2511(a)(2), the following three elements must be met: (1)
     repeated and continued incapacity, abuse, neglect or refusal; (2)
     such incapacity, abuse, neglect or refusal has 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.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted).   “The grounds for termination 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) (citations omitted).      “[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.” In re A.D., 93

A.3d 888, 897 (Pa. Super. 2014) (discussing In re Adoption of S.P., 47

A.3d 817 (Pa. 2012)).


                                      -5-
J-S15014-16


      Instantly, the trial court found that Father’s incarceration has rendered

him incapable of providing Child with essential parental care, control, and

subsistence, and that Father will be unable to remedy the causes of his

parental incapacity.     Trial Court Opinion, 10/7/2015, at 6.      The court

observed that Father may not be released from incarceration until 2017, and

that, even if Father is paroled at an earlier date, he will not immediately be

able to care for Child. Id.

      Father argues that the trial court erred by terminating his parental

rights because DHS failed to provide him with reasonable reunification

efforts. Father’s brief at 6-7. Father emphasizes that he has attempted to

build a relationship with Child by sending her cards and gifts, and by

requesting visits and phone contact.     Id.   According to Father, he “was

striving to do anything he could within his confines to prevent termination of

his rights.” Id. at 7.

      After a thorough review of the record in this matter, we conclude that

the trial court did not abuse its discretion by involuntarily terminating

Father’s parental rights to Child. Initially, we reject Father’s claim that his

parental rights should not have been terminated because DHS failed to

provide him with reasonable reunification efforts.       Our Supreme Court

recently held that reasonable reunification efforts are not necessary to

support a decree terminating parental rights pursuant to Section 2511(a)(2).

We have discussed the Court’s decision as follows.



                                     -6-
J-S15014-16


     In In re D.C.D., ___ Pa. ___, 105 A.3d 662 (2014), our
     Supreme Court analyzed the language of Section 2511(a)(2) of
     the Adoption Act, as well as Section 6351 of the Juvenile Act, 42
     Pa.C.S.A. § 6351. The Court reasoned that, while “reasonable
     efforts may be relevant to a court’s consideration of both the
     grounds for termination and the best interests of the child,”
     neither of these provisions, when read together or individually,
     requires reasonable efforts.      The Court also concluded that
     reasonable efforts were not required to protect a parent’s
     constitutional right to the care, custody, and control of his or her
     child.
In re Adoption of C.J.P., 114 A.3d 1046, 1055 (Pa. Super. 2015) (some

citations omitted).   Thus, even if Father were correct that DHS failed to

provide reasonable reunification efforts in this case, he would not be entitled

to relief.

       Moreover, our review of the record confirms that DHS presented clear

and convincing evidence in support of its termination petition.    During the

termination hearing, DHS social worker, Barbara Forrest, testified that there

was no indication in the DHS record that Father was involved in Child’s life

prior to her placement in foster care.      N.T., 5/27/2015, at 48-49.      In

addition, Child never visited with Father during her forty-six months in care.

Id. at 44. Ms. Forrest acknowledged that Father has sent letters and cards

to Child in the past, but she was not sure if Father had sent anything to

Child recently. Id. at 41. Father also has requested visits and phone calls

with Child.   Id. at 48, 50.   Concerning Father’s incarceration, Ms. Forrest

noted that Father was denied parole in April of 2015. Id. at 44.

       Father testified that he has been incarcerated since December of 2011,

and that his maximum sentence will expire in December of 2017. Id. at 15,


                                     -7-
J-S15014-16


21, 23.   However, Father stated that he will be interviewed by the parole

board in August of 2015, and that he has “a very good chance” of being

paroled. Id. at 15, 34. Father explained that he has not seen Child since

2009, but that he has repeatedly requested visits, pictures, and phone

contact with Child. Id. at 19-21, 25, 30-31, 34. Father indicated that he

also has written numerous letters to Child and sent her Christmas presents.

Id. at 19, 24-25, 34.

      Finally, counsel for DHS provided the trial court with a copy of Father’s

criminal record, which was entered into evidence as DHS Exhibit 53.

Father’s criminal record reveals that he has a lengthy history of convictions

and incarcerations dating back to 1996. DHS Exhibit 53, at 1. That year

alone, Father pled guilty to seventeen separate offenses, including robbery

and aggravated assault. Id. at 1-3. Between 2007 and 2009, Father was

convicted of, or pled guilty to, an additional eight offenses. Id. at 3-4, 7. In

2013, Father pled guilty to an additional three offenses, including another

aggravated assault. Id. at 4-5.

      Accordingly, the record supports the conclusion of the trial court that

Father’s incarceration renders him incapable of providing Child with essential

parental care, control, or subsistence necessary for Child’s physical or

mental well-being. Moreover, Father cannot, or will not, remedy his parental

incapacity.    Father   has an    extensive   criminal history, which spans

approximately twenty years. Father has been incarcerated since 2011, and



                                     -8-
J-S15014-16


it is not clear when Father will be released. While it appears that Father has

written letters to Child and attempted to have contact with her during his

incarceration, these efforts do not make up for the fact that Father is either

unwilling or incapable of curbing his criminal tendencies. It was proper for

the court to conclude that Child should no longer be denied permanency.

See M.E.P., 825 A.2d at 1276 (“A child's life simply cannot be put on hold in

the   hope   that   the   parent   will   summon   the   ability   to   handle   the

responsibilities of parenting.”) (citations omitted).

      We next consider whether the trial court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(b).3 We have

discussed our analysis under Section 2511(b) as follows.

      Subsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
      “Intangibles such as love, comfort, security, and stability are
      involved in the inquiry into the needs and welfare of the child.”
      In addition, we instructed that the trial 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. However, in cases where there is no evidence of a
      bond between a parent and child, it is reasonable to infer that no
      bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
      2008).    Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.
      Id. at 63.


3
  While Father does not discuss Section 2511(b) in the argument section of
his brief, we will nonetheless consider this issue. See In re C.L.G., 956
A.2d 999, 1010 (Pa. Super. 2008) (en banc) (considering Section 2511(b)
despite the appellant’s failure to challenge the trial court’s analysis).



                                          -9-
J-S15014-16


In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

      Here, the trial court observed that Child has no relationship with

Father. Trial Court Opinion, 10/7/2015, at 7. In contrast, the court found

that Child has a strong bond with her foster mother, and that removing Child

from the care of her foster mother would be contrary to Child’s best interest.

Id. The court concluded that adoption would best serve Child’s needs and

welfare. Id.

      We again discern no abuse of discretion.        Ms. Forrest testified that

Child has resided with the same pre-adoptive foster mother since she was

placed in foster care in 2011. Id. at 39. Child’s siblings reside in the same

foster home.   Id.   Child is “extremely bonded” to her foster mother, and

refers to her as “mom.”    Id. Ms. Forrest believed that Child would suffer

irreparable harm if she were removed from her current placement. Id. Ms.

Forrest indicated that she has mentioned the possibility of visiting Father to

Child, but that Child does not express any interest in having visits. Id. at

40-41, 47-48. Ms. Forrest reported that she provided Child with cards and

letters from Father, and that Child was “fine with that . . . .” Id. However,

Child has not written back to Father.    Id. at 42.    Ms. Forrest opined that

Child is not bonded with Father, that Child would not suffer irreparable harm

if Father’s parental rights are terminated, and that termination of Father’s

parental rights would be in Child’s best interest. Id. at 45.




                                    - 10 -
J-S15014-16


       Thus, the record confirms that Child is bonded with her pre-adoptive

foster mother. In contrast, Father has not seen Child since at least 2009,

when she was about two years old.         Child has displayed no interest in

visiting Father. It is clear that Father and Child do not share a bond, and

that Child’s needs and welfare will best be served by terminating Father’s

parental rights, and permitting Child to be adopted.

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

discretion by involuntarily terminating Father’s parental rights to Child, we

affirm the decree of the trial court pursuant to 23 Pa.C.S. § 2511(a)(2) and

(b).

       Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2016




                                    - 11 -
