J-S78030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: A.L.P.                        IN THE SUPERIOR COURT OF
(ADOPTEE'S NAME AS ON BIRTH                             PENNSYLVANIA
CERTFICATE)




APPEAL OF: C.L.P., FATHER

                                                       No. 805 WDA 2016


             Appeal from the Order Entered April 28, 2016
        In the Court of Common Pleas of Westmoreland County
                 Orphans' Court at No(s): 60 of 2015
*************************************************************

IN RE: ADOPTION OF E.M.P. (ADOPTEE'S              IN THE SUPERIOR COURT OF
NAME AS ON BIRTH CERTIFICATE)                           PENNSYLVANIA




APPEAL OF: C.L.P., FATHER

                                                       No. 806 WDA 2016


                      Appeal from the Order April 28, 2016
             In the Court of Common Pleas of Westmoreland County
                      Orphans' Court at No(s): 61 of 2015


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                           FILED NOVEMBER 03, 2016


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       C.L.P. (“Father”) appeals from the orders entered April 29, 2016, in

the Court of Common Pleas of Westmoreland County, which involuntarily

terminated his parental rights to his minor daughters, E.M.P., born in July of

2012, and A.L.P., born in May of 2013 (collectively, “the Children”).1 After

careful review, we affirm.

       We summarize the relevant factual and procedural history of this

matter as follows.        On or about October 20, 2012, Father and Mother

brought E.M.P. to the hospital “with complaints of shortness of breath and

concerns for a possible apneic spell.” Order of Adjudication and Disposition

(E.M.P.), 1/28/2013, Findings of Fact at ¶ 2. Upon examination, E.M.P. was

found to be in critical condition.        Id. at ¶ 6.   Radiographs and a skeletal

survey revealed that E.M.P. was suffering from numerous injuries, including

“a fracture of the left parietal bone, with soft-tissue injuries; fractures of ribs

2-9 on the right, and ribs 3-11 on the left, an acute right fracture of the

femur, fractures of the right and left radius and ulna, which were beginning

to heal, and a subdural hemorrhage.” Id. at ¶ 16. E.M.P. nearly died from

her injuries. Id. at ¶ 24.



____________________________________________


1
  The Children’s mother, E.M.F. (“Mother”), executed consent to adoption
forms on July 2, 2015. On April 26, 2016, the orphans’ court entered orders
confirming Mother’s consent and terminating her parental rights to the
Children. Mother has not filed a brief in connection with this appeal, nor has
she filed her own separate appeal.




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        E.M.P. was adjudicated dependent following a hearing on January 28,

2013, and aggravated circumstances were found as to both parents. Father

and Mother were incarcerated that same day, and were charged with

inflicting E.M.P.’s injuries. N.T., 4/28/2016, at 17. Father has not had any

contact with E.M.P. since January 10, 2013.        Id. at 20.     On December 5,

2014,    Father   was   convicted    of   aggravated   assault,   conspiracy,   and

endangering the welfare of a child, with respect to E.M.P. Id. at 12-15, 37-

38; Father’s criminal docket at 4, 12.          Father currently is serving an

aggregate sentence of nine to eighteen years’ incarceration, which he

received on March 19, 2015.         N.T., 4/28/2016, at 13-15, 37-38; Father’s

sentencing order at 1-2.      As a condition of his sentence, Father is not

permitted to have any contact with E.M.P., and is not permitted to have

unsupervised contact with any other minor child. Father’s sentencing order

at 1.

        A.L.P. was born while Father was incarcerated, and was adjudicated

dependent by order dated July 18, 2013. N.T., 4/28/2016, at 34; Order of

Adjudication and Disposition (A.L.P.), 7/18/2013.         Father has never had

contact with A.L.P. N.T., 4/28/2016, at 21.

        On July 7, 2015, the Westmoreland County Children’s Bureau

(“WCCB”) filed petitions to involuntarily terminate Father’s parental rights to

the Children.     The orphans’ court held a termination hearing on April 28,




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2016.     Following the hearing, on April 29, 2016, the court entered orders

terminating Father’s parental rights.2         Father timely filed notices of appeal

on May 31, 2016, along with concise statements of errors complained of on

appeal.3

        Father now raises the following issue for our review.

        I. Whether the [orphans’] court erred in terminating [Father’s]
        parental rights to the minor children, [the Children], for the
        reason that the court’s determination that [Father’s] parental
        rights to the said children should be terminated constituted an
        abuse of discretion?

Father’s brief at 6 (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
____________________________________________


2
  The orphans’ court did not file a written opinion in this matter. Instead,
the court provided a brief summary of its findings at the conclusion of the
termination hearing. See N.T., 4/28/2016, at 96-102.
3
  Father had thirty days to appeal the termination orders, meaning that his
notices of appeal would normally be due by May 29, 2016. See Pa.R.A.P.
903(a) (“Except as otherwise prescribed by this rule, the notice of appeal
. . . shall be filed within 30 days after the entry of the order from which the
appeal is taken.”). However, because May 29, 2016, was a Sunday, and
because court was closed for Memorial Day on May 30, 2016, Father’s
notices of appeal were timely filed on May 31, 2016. See 1 Pa.C.S.A.
§ 1908 (“Whenever the last day of any such period shall fall on Saturday or
Sunday, or on any day made a legal holiday by the laws of this
Commonwealth or of the United States, such day shall be omitted from the
computation.”).



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      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
      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 orphans’ court terminated Father’s parental rights to

E.M.P. pursuant to Sections 2511(a)(1), (2), (5), (8), (9), and (b).          The

court terminated Father’s parental rights to A.L.P. pursuant to Sections



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2511(a)(1), (2), (5), (8), and (b).   We need only agree with the orphans’

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
     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.A. § 2511(a)(2), (b).




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     We first address whether the orphans’ 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)).

     Instantly,   Father argues that WCCB failed to prove that his parental

rights should be terminated by clear and convincing evidence. Father’s brief

at 15-16.    While Father acknowledges that he was convicted of assaulting

E.M.P. and is serving a lengthy prison sentence, Father insists that he is



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innocent and has appealed his conviction to the Superior Court.        Id.   In

addition, Father contends that he completed all of the services that he is

capable of completing while incarcerated. Id. at 16.

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

the orphans’ court did not abuse its discretion by involuntarily terminating

Father’s parental rights to E.M.P. As discussed above, Father was convicted

of inflicting serious injuries on E.M.P. in October of 2012, specifically,

aggravated assault and endangering the welfare of a child, and is currently

serving an aggregate sentence of nine to eighteen years’ incarceration. As a

condition of his sentence, Father is not permitted to have any contact with

E.M.P.    Given Father’s abuse, and his lengthy resulting prison sentence,

there is clear and convicing evidence that he is incapable of being a parent

to E.M.P.      Moreover, Father will not be able to remedy his parental

incapacity.4

       The record equally supports the decision of the orphans’ court to

terminate Father’s parental rights to A.L.P. A.L.P. has never met Father and

has no relationship with him.         By the time Father completes his minimum

sentence in January of 2022, A.L.P. will be nearly nine years old.       Even
____________________________________________


4
  While Father contends that he is innocent, and that he has appealed his
conviction to the Superior Court, this argument merits no relief. Our Court
recently affirmed Father’s judgment of sentence in an unpublished
memorandum. In order to protect the Children’s identity, we do not include
a citation to the memorandum affirming Father’s judgment of sentence in
the instant decision.



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assuming that Father is paroled at that time, he will be permitted to have

only supervised visits with A.L.P. as a condition of his sentence.     Father

simply is not capable of caring for A.L.P., and her life should not be put on

hold any longer. As this Court has stated, “a child’s life cannot be held in

abeyance while a parent attempts to attain the maturity necessary to

assume parenting responsibilities. The court cannot and will not subordinate

indefinitely a child's need for permanence and stability to a parent’s claims

of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d

502, 513 (Pa. Super. 2006).

     We next consider whether the orphans’ court abused its discretion by

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

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

     Section 2511(b) focuses on whether termination of parental
     rights would best serve the developmental, physical, and
     emotional needs and welfare of the child. As this Court has
     explained, Section 2511(b) does not explicitly require a bonding
     analysis and the term ‘bond’ is not defined in the Adoption Act.
     Case law, however, provides that analysis of the emotional bond,
     if any, between parent and child is a factor to be considered as
     part of our analysis. While a parent’s emotional bond with his or
     her child is a major aspect of the subsection 2511(b) best-
     interest analysis, it is nonetheless only one of many factors to be
     considered by the court when determining what is in the best
     interest of the child.

           [I]n addition to a bond examination, the trial court
           can equally emphasize the safety needs of the child,
           and should also consider the intangibles, such as the
           love, comfort, security, and stability the child might
           have with the foster parent. Additionally, this Court
           stated that the trial court should consider the
           importance of continuity of relationships and whether


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              any existing parent-child bond can be severed
              without detrimental effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and

citations omitted).

      Here, Father argues that the orphans’ court abused its discretion

because it “failed to give adequate consideration to the effect that the

proposed termination would have on the minor children’s needs and

welfare.”     Father’s brief at 16-17.    Father emphasizes that WCCB did not

present “testimony of a licensed psychologist of other sufficient evidence”

when addressing this issue. Id. at 18.

      We again conclude that the orphans’ court did not abuse its discretion.

The record reveals that Father has not had any contact with E.M.P. since he

was incarcerated in January of 2013, and that Father has never had contact

with A.L.P.    Thus, it is beyond cavil that the Children do not have a bond

with Father.     See In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008)

(“In cases where there is no evidence of any bond between the parent and

child, it is reasonable to infer that no bond exists.”). Further, while Father

suggests that WCCB should have presented the testimony of a psychologist,

it is well-settled that a court in a termination proceeding “is not required by

statute or precedent to order a formal bonding evaluation be performed by

an expert.” In re K.K.R.-S., 958 A.2d 529, 534 (Pa. Super. 2008) (citation

omitted).



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      Accordingly, because we conclude that the orphans’ court did not

abuse its discretion by involuntarily terminating Father’s parental rights to

the Children, we affirm the orders of the orphans’ court.

      Orders affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2016




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