J-S09019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF L.A.G.G., A             :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: P.T., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 2984 EDA 2016

                 Appeal from the Decree entered August 5, 2016
              In the Court of Common Pleas of Montgomery County
                     Orphans’ Court at No: No. 2016-A0072


BEFORE:      SHOGAN, STABILE, and PLATT*, JJ.

MEMORANDUM BY STABILE, J.:                                FILED APRIL 12, 2017

        P.T. (“Father”) appeals from the August 5, 2016 decree involuntarily

terminating his parental rights to his son, L.A.G.G. (“Child”), born in

December of 2011.1 We affirm.2

        The record reveals the factual and procedural history as follows.     In

October of 2013, the Montgomery County Office of Children and Youth (“the

Agency”) received a referral regarding this family due to concerns of
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The orphans’ court involuntarily terminated the parental rights of W.G.
(“Mother”) by separate decree dated August 5, 2016. Mother did not file a
notice of appeal.
2
  We observe that the guardian ad litem filed a brief in support of the decree
involuntarily terminating Father’s parental rights.
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Mother’s mental health and Child’s development.               N.T., 7/13/16, at 133.

The Agency implemented in-home services for Mother and Child. Id. at 134.

      Child has a twenty-five percent delay in his speech, fine motor skills,

and cognitive abilities.      N.T., 7/13/16, at 15.         He has an Individualized

Education Program (“IEP”), and he receives occupational and speech

therapy.    Id. at 168-169.      On October 14, 2014, Child was adjudicated

dependent, and he was placed in a foster home. Id. at 154.

      Throughout the history of this case, Father alleged that he resided in

the State of Delaware. Child never lived with him. Father met Child for the

first time at a supervised visit in April of 2015, following testing that

established his paternity in February of 2015. N.T., 7/22/16, at 48; N.T.,

7/13/16, at 170-171, 190.

      On March 11, 2016, the Agency filed a petition for the involuntary

termination   of   Father’s    parental    rights   pursuant    to   23   Pa.C.S.A.   §

2511(a)(1), (2), (8), and (b). The orphans’ court held a hearing on July 13

and 22, 2016. The Agency presented the testimony of Deborah L. Shanley,

the Administrative Assistant and Director of Medical Records at Montgomery

County     Emergency   Service;     Lori    Sheetz,   the    case    manager   service

coordinator at the Montgomery County Intermediate Unit; and Gwen




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Damiani, the Agency caseworker. Father testified on his own behalf, and he

presented the testimony of his aunt, E.R.G. (“Paternal Aunt”).3

       By decree dated and entered on August 5, 2016, the orphans’ court

involuntarily terminated Father’s parental rights. Father timely filed a notice

of appeal and a concise statement of errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b).

       On appeal, Father presents the following issues for our review:

       (1) Whether the [o]rphans’ [c]ourt erred when it determined the
       existence of clear and convincing evidence that Father failed to
       perform any parental duties for a period of more than 6 months
       prior to the filing of the Petition for Termination of Parental
       Rights?

       (2) Whether the [o]rphans’ [c]ourt erred in terminating Father’s
       parental rights when it determined the existence of clear and
       convincing evidence that Father did not produce sufficient
       evidence of his efforts to fulfill Family Service Plan goals?

       (3) Whether the [o]rphans’ [c]ourt erred when it determined the
       existence of clear and convincing evidence that the family
       member nominated by Father to serve as caregiver to [Child]
       was unable to deal with life stressors and the [C]hild’s needs
       simultaneously?

       (4) Whether the [o]rphans’ [c]ourt erred when it determined the
       existence of clear and convincing evidence that Father was
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3
  In addition, the Agency presented testimony from the following witnesses
with respect to the petition for the involuntary termination of Mother’s
parental rights: Stephen D. Miksic, Ph.D., who performed a psychological
evaluation of Mother, and Dr. Alan D. Sofranko, the attending physician of
the Forensic Assertive Community Treatment Team, where Mother received
mental health treatment. Mother did not testify, but she presented the
testimony of Danielle Haydt, an employee at the Penn Foundation who
provided the transportation for supervised visits between her and Child.



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      unable to affirmatively assert parental efforts to establish a bond
      with [Child]?

      (5) Whether the [o]rphans’ [c]ourt erred when it determined the
      existence of clear and convincing evidence of termination of
      Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(8)?

      (6) Whether the [o]rphans’ [c]ourt erred when it determined the
      existence of clear and convincing evidence that the termination
      of Father’s parental rights best serves the needs and welfare of
      [Child]?

      (7) Whether the [o]rphans’ [c]ourt erred when it determined the
      existence of clear and convincing evidence that the termination
      of Father’s parental rights will not irreparably harm [Child]?

Father’s Brief at 3.

      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).

      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


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B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we

conclude that the certified record sustains the orphans’ court’s decision to

terminate under Sections 2511(a)(2) and (b), which provide as follows.4

       (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

____________________________________________


4
  Based on this disposition, we need not consider Father’s first and fifth
issues which involve Section 2511(a)(1) and (8). However, it is important to
note that Section 2511(a)(8) does not provide a basis for termination of
Father’s parental rights because Child was not removed from Father’s care at
the time of his placement. Indeed, during his life, Child has never been in
Father’s care. See In re C.S., 761 A.2d 1197 (Pa. Super. 2000) (en banc)
(stating that Section 2511(a)(5) and (8) did not provide a basis for
terminating the father’s parental rights when he was incarcerated at the
time of the child’s removal from the mother’s care).



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     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).

     This Court has stated as follows.

     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).   Further, we have stated, “[t]he 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).

     With respect    to   Section 2511(b),   this   Court has   stated    that,

“[i]ntangibles such as love, comfort, security, and stability are involved in

the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d

1284, 1287 (Pa. Super. 2005) (citation omitted).     Further, 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. (citation omitted).   However, “[i]n cases where there is no

evidence of any bond between the parent and child, it is reasonable to infer


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that no bond exists. The extent of any bond analysis, therefore, necessarily

depends on the circumstances of the particular case.”       In re K.Z.S., 946

A.2d 753, 762-763 (Pa. Super. 2008) (citation omitted).

      Turning to Father’s issues on appeal, he argues that the orphans’ court

erred by concluding that Father did not produce sufficient evidence of his

efforts to fulfill his Family Service Plan (“FSP”) goals.    Father’s issue is

without merit.

      Ms. Damiani, the Agency caseworker from January of 2014, up

through the time of the subject proceedings, testified that Father’s FSP goals

required him to provide information regarding a supervision plan for Child,

his schooling, and a plan for the special services he would receive as a result

of his developmental delays.     N.T., 7/13/16, at 174, 182.       In addition,

Father was required to provide proof of housing, employment, and a

budgeting plan, as well as obtain a psychological evaluation. Id. Further,

she testified that the Agency offered Father supervised visits with Child

commencing on April 7, 2015. Id. at 190.

      Ms. Damiani testified as follows on direct examination:

      Q. Throughout the time that you’ve had the case, what has been
      Father’s attitude about the [Agency’s] involvement?

      A. [Father] has been very resistant to just, you know, what
      things that we’ve asked, because he feels, like, it’s not
      necessary.

      Q. And has he expressed that to you, has he told you that?

      A. Yes, yes.

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     Q. Has he told you that on more than one occasion?

     A. Yes.

N.T., 7/13/16, at 173.     She further testified on cross-examination that

Father “has been very combative with me throughout the life of the case,

constantly arguing with me when I try to work with him about things, telling

me why it shouldn’t be that way, why he doesn’t agree with it.” Id. at 224.

     Ms. Damiani testified that, in March of 2016, the month that the

Agency filed the involuntary termination petition, Father told her that “he

wants [Child], but he said since he’s been out of work, he’s not progressed

in what is required for [Child’s] care.” N.T., 7/13/16, at 194. Ms. Damiani

testified that in the same month, March of 2016, Father sent her his

paystubs via text message.    Id. at 183.   She testified that she requested

Father to mail the paystubs to her because she was unable to view them

clearly by text message, but Father did not comply.    Id.   In addition, via

text message, in approximately June of 2016, the month before the subject

proceedings, Father provided the name of the Bush School as a resource for

Child. Id. at 184-185.

     Ms. Damiani testified that Father did not complete a psychological

evaluation.    Further, Father did not provide her with housing or budget

information.   N.T., 7/13/16, at 184-185, 194.   Moreover, she testified the

Agency offered Father a total of 28 supervised visits with Child, commencing




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on April 7, 2015, and Father attended twelve of them.          Id. at 190.      She

testified that Father’s last visit with Child was on November 23, 2015. Id.

      In his brief on appeal, Father argues that he had difficulty attending

the supervised visits at the Agency’s office because (1) he had to either

borrow a car or rely on others to transport him and (2) in May of 2015, he

obtained temporary employment where he was required to work until 5:00

p.m. or 6:00 p.m. daily. Father’s Brief at 18.

      Based on the foregoing, we reject Father’s assertion that the court

erred in terminating his parental rights based on his efforts to fulfill his FSP

goals. To the contrary, the record demonstrates that Father made minimal

efforts to comply with his FSP goals.        In fact, Ms. Damiani’s testimony

demonstrates    that   Father   resisted   complying    with   the    requirements

necessary for reunification with Child.     To the extent that Father did not

resist or argue with Ms. Damiani regarding his FSP goals, the evidence

reveals that he was incapable of satisfying them.

      We discern no abuse of discretion by the orphans’ court in terminating

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

testimony   overwhelmingly      demonstrates     that   Father’s     repeated   and

continued incapacity, neglect, or refusal to cooperate with the Agency and to

satisfy his FSP goals has caused Child to be without essential parental care,

control, or subsistence necessary for his physical or mental well-being.




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Further, the causes of Father’s incapacity, neglect, or refusal cannot or will

not to be remedied.

      Father argues in his fourth, six and seventh issues that the orphans’

court abused its discretion in terminating his parental rights pursuant to

Section 2511(b) because the Agency did not present any evidence regarding

whether a bond existed between him and Child or the foster parents and

Child, and the effect on Child of terminating his parental rights.        We

disagree.

      This Court has held that courts considering termination of parental

rights are not required by statute or precedent to order that an expert

perform a formal bonding evaluation. In re K.K.R.-S., 958 A.2d 529, 533

(Pa. Super. 2008). In addition, we have explained that,

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

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

      In this case, there is no testimonial evidence that a parent-child bond

exists between Father and Child.         Child never lived with Father.   The

orphans’ court found that Father has had “brief involvement in his child’s

life.” Trial Court Opinion, 8/5/16, at 10. Indeed, Ms. Damiani testified that

Father visited Child on only twelve occasions between April 7, 2015, and

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November 23, 2015. N.T., 7/13/16, at 190. Ms. Damiani testified that Child

will not suffer irreparable harm if Father’s parental rights are terminated.

Id. at 196.   Thus, the evidence supports termination of Father’s parental

rights pursuant to Section 2511(b).

      To the extent Father asserts that termination was improper because

there is no record evidence of a bond between Child and his foster parents,

we disagree. Father cites no statutory or case law providing that an agency

must produce evidence of a parental bond between a child and his or her

foster parents.   In contrast, the Adoption Act provides, and our case law

confirms, that a court may terminate parental rights without a pre-adoptive

home being identified. See 23 Pa.C.S.A. § 2512(b) (“If the petitioner is an

agency it shall not be required to aver that an adoption is presently

contemplated nor that a person with a present intention to adopt exists.”);

see also In re Adoption of B.J.R., 579 A.2d 906, 915 (Pa. Super. 1990)

(stating that the fact that the record offers no indication that the agency has

found a prospective adoptive family for minor does not serve to bar the

involuntary termination of parental rights where such termination is

otherwise warranted). Thus, we conclude it follows that the Agency was not

required to aver the existence of a parental bond between Child and his

foster parents where the evidence otherwise warranted the termination of

Father’s parental rights.




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     Furthermore, in this case, Ms. Damiani testified that Child’s foster

parents, with whom he was placed on May 12, 2016, two months before the

subject proceedings, are a pre-adoptive resource.     N.T., 7/13/16, at 166,

214. Although Ms. Damiani did not testify that a parental bond yet exists

between Child and his foster parents, she testified that his foster parents

“are very warm towards him, and . . . comfort him with hugs and play with

him and make him feel very at home.”        Id. at 166. Ms. Damiani testified

that Child’s foster mother “is actually a speech pathologist by profession,

and she is willing to and has been working with [Child].” Id. at 169. Ms.

Damiani testified that Child’s “speech and his vocabulary has definitely

increased since he has been in that home.” N.T., 7/22/16, at 15. As such,

we discern no abuse of discretion by the orphans’ court in concluding that

terminating Father’s parental rights will serve Child’s developmental,

physical, and emotional needs and welfare pursuant to Section 2511(b).

     Finally, Father argues that the orphans’ court erred in determining that

Paternal Aunt, who was “nominated by Father to serve as caregiver to

[Child,] was unable to deal with life stressors and the Child’s needs

simultaneously.” Father’s Brief at 20. Father’s argument is meritless.

     In its opinion accompanying the subject decree, the orphans’ court

found that Paternal Aunt credibly testified that, “she was too stressed to

read her mail [regarding receipt of a letter from the Agency] due to the

death of her mother.”     Trial Court Opinion, 8/5/16, at 5.       The court


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concluded, “[t]he evidence presented documented [Paternal Aunt’s] inability

to deal with life stressors and the [C]hild’s needs at the same time.” Id.

      By way of background, Father recommended Paternal Aunt as a

placement resource for Child. N.T., 7/13/16, at 181-183.         Ms. Damiani

testified that she attempted to conduct a “home study” regarding Paternal

Aunt, but Paternal Aunt did not respond to a letter she sent in this regard.

Id. at 231.   Paternal Aunt testified that she did not recall receiving Ms.

Damiani’s letter “because . . . I was going through losing my mother. . . .”

N.T., 7/22/16, at 149-150.

      We conclude the court’s finding regarding Paternal Aunt as a

prospective kinship care resource is irrelevant to its conclusion that Father’s

conduct warrants termination under Section 2511(a) and that termination

would serve the needs and welfare of Child under Section 2511(b). Because

the record supports the involuntary termination of Father’s parental rights,

we affirm the decree.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2017




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