J-S32017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.A.V. JR., A          :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.V., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 3702 EDA 2016

                 Appeal from the Order Entered October 3, 2016
              In the Court of Common Pleas of Philadelphia County
              Domestic Relations at No: CP-51-AP-0000852-2016,
                             FID: 1-FN-466437-2009


BEFORE:      GANTMAN, P.J., STABILE, and FITZGERALD*, JJ.

MEMORANDUM BY STABILE, J.:                                 FILED JULY 17, 2017

        J.V. (“Father”) appeals from the decree entered on October 3, 2016, in

the Court of Common Pleas of Philadelphia County, that involuntarily

terminated his parental rights to his son, J.A.V., Jr. (“Child”), born in July of

2012.1, 2 We affirm.

        The trial court made the following findings of fact, in relevant part.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   By separate decrees entered on October 3, 2016, the trial court
involuntarily terminated the parental rights of A.D.M. (“Mother”) and
Unknown Father. Neither Mother nor Unknown Father filed notices of
appeal.
2
  The Child Advocate filed a brief in this appeal wherein it argues in support
of the decree involuntarily terminating Father’s parental rights.
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       Father was incarcerated less than one year after the birth of
       Child for robbery and drug[-]related offenses. On August 12,
       2014, the Department of Human Services (“DHS”) received a
       General Protective Services (“GPS”) report alleging that Child
       and his brother, [G.M.][3], . . . were not properly supervised by
       Mother. The GPS also alleged that [Child and G.M.] were dirty
       and malodorous, that [their] home had very little food and an
       inoperable refrigerator.

       . . . On August 26, 201[4], DHS visited Mother’s home and
       advised her of the allegations of the GPS report. At the time of
       the visit, Child was with Mother. DHS advised Mother that the
       Child could not stay with her during the investigation of the GPS
       report. Child was transported from the Mother’s home to stay
       with his Aunt and [G.M.].

       On August 27, 2014, DHS obtained an order of Protective
       Custody (“OPC”) for [Child and G.M.], who remained with Aunt.
       DHS learned that the Child had been taken to St. Christopher’s
       Hospital Emergency Room on August 27, 2014, because the
       Child was vomiting and appeared extremely distressed. After an
       examination, hospital staff reported to DHS that the Child was
       behind on his routine medical care; appeared malnourished; and
       the Child was diagnosed with a genital fungus. . . .

       On February 11, 2016, [Community Umbrella Agency (“CUA”)]
       NET revised the SCP       objectives for Father who was still
       incarcerated. The [Single Case Plan (“SCP”)] objectives for
       Father were (1) to participate in case by phone; (2) to provide
       documentation for anger management classes upon completion;
       (3) to provide documentation for an education program; and (4)
       to provide documentation for General Equivalency Diploma
       (“GED”) classes upon completion in prison. . . .

Trial Court Opinion, 1/11/17, at 2-3 (citations to record omitted).

       On September 16, 2016, DHS filed a petition for the involuntary

termination of Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1),
____________________________________________


3
  G.M. is Child’s half-brother. He is not the biological child of Father.
Therefore, G.M. is not a subject of this appeal.



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(2), (5), (8), and (b). A hearing occurred on October 3, 2016, during which

DHS presented the testimony of Miriam Colon, the CUA case manager.

Father testified on his own behalf via telephone from State Correctional

Institution (“SCI”) Huntingdon. Specifically, Father testified he is serving a

sentence of incarceration of ten and one-half to 25 years for convictions

related to robbery and possession with intent to deliver illegal drugs. N.T.,

10/3/16, at 32-33.       He testified that he had served fourteen years of this

sentence.4 Id. at 33. Father testified that he will be paroled to a halfway

house on October 24, 2016. Id. at 29.

       By decree entered on October 3, 2016, the trial court involuntarily

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

and (b).     On November 30, 2016, Father filed a notice of appeal and a

concise    statement     of   errors    complained   of   on   appeal   pursuant   to

Pennsylvania Rules of Appellate Procedure 1925(a)(2)(i) and (b).5


____________________________________________


4
  The record reveals that Father was sentenced in October of 1999. See
N.T., 10/3/16, at DHS Exhibit 2. There is no dispute that Father was
released from prison for an unspecified period of time, up to and including
Child’s sixth month of life.
5
  Father’s appeal is timely for the following reasons. See Pa.R.A.P. 903(a)
(providing “the notice of appeal . . . shall be filed within 30 days after the
entry of the order from which the appeal is taken”). By order filed on
October 28, 2016, the trial court granted Father’s motion to vacate counsel
and appoint new counsel. By order dated November 15, 2016, the trial
court appointed counsel for Father for appeal purposes only. On November
17, 2016, Father’s newly appointed counsel filed a motion for leave to file an
(Footnote Continued Next Page)


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      On appeal, Father raises the following issues for our review.

      1. Did . . . DHS sustain the burden that Father’s rights should be
      terminated when there was evidence that Father had completed
      and/or had been actively completing [his] permanency goals?

      2. Was there . . . sufficient evidence presented to establish that
      it was in the best interest of the child to terminate Father’s
      parental rights?

Father’s Brief at 4.

      Our standard of review is as follows:

      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 (“Act”), 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated

analysis.


                       _______________________
(Footnote Continued)

appeal nunc pro tunc, which the trial court granted by order dated November
22, 2016.



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     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 trial court as to any one subsection of

Section 2511(a), as well as Section 2511(b), in order to affirm. See In re

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

conclude that the certified record supports the decree pursuant to Section

2511(a)(1) and (b), which provides 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:

         (1) The parent by conduct continuing for a period of at
         least six months immediately preceding the filing of the
         petition either has evidenced a settled purpose of
         relinquishing parental claim to a child or has refused or
         failed to perform parental duties.

         ...

     (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

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      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)(1), (b).

      With respect to Section 2511(a)(1), this Court has explained “the

moving party must produce clear and convincing evidence of conduct,

sustained for at least the six months prior to the filing of the termination

petition, which reveals a settled intent to relinquish parental claim to a child

or a refusal or failure to perform parental duties.” In re Z.S.W., 946 A.2d

726, 730 (Pa. Super. 2008) (citing In re Adoption of R.J.S., 901 A.2d 502,

510 (Pa. Super. 2006)). Further,

      Once the evidence establishes a failure to perform parental
      duties or a settled purpose of relinquishing parental rights, the
      court must engage in three lines of inquiry: (1) the parent’s
      explanation for his or her conduct; (2) the post-abandonment
      contact between parent and child; and (3) consideration of the
      effect of termination of parental rights on the child pursuant to
      Section 2511(b).

Id.   (quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa.

1998)).

      In In re Adoption of S.P., supra, our Supreme Court discussed In

re Adoption of McCray, 331 A.2d 652 (Pa. 1975), a case wherein the

Court considered termination of parental rights of incarcerated persons

involving abandonment, which is currently codified at Section 2511(a)(1).

The S.P., the Court stated:


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     Applying in McCray the provision for termination of parental
     rights based upon abandonment, now codified as § 2511(a)(1),
     we noted that a parent “has an affirmative duty to love, protect
     and support his child and to make an effort to maintain
     communication and association with that child.” Id. at 655. We
     observed that the father’s incarceration made his performance of
     this duty “more difficult.” Id.

In re Adoption of S.P., 47 A.3d at 828. The S.P., the Court continued:

         [A] parent’s absence and/or failure to support due to
         incarceration is not conclusive on the issue of
         abandonment.       Nevertheless, we are not willing to
         completely toll a parent’s responsibilities during his or her
         incarceration.    Rather, we must inquire whether the
         parent has utilized those resources at his or her
         command while in prison in continuing a close
         relationship with the child. Where the parent does not
         exercise reasonable firmness in declining to yield to
         obstacles, his other rights may be forfeited.

     [McCray] at 655 (footnotes and internal quotation marks
     omitted). . . .

In re Adoption of S.P., supra (emphasis added).

     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

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



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

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

      On appeal, Father contends with respect to Section 2511(a)(1) that

DHS failed to satisfy its burden of proof because he complied with his SCP

objective related to parenting classes, and he was working toward satisfying

his remaining objectives. Father’s Brief at 10. Further, Father asserts that

DHS failed to make reasonable efforts to reunify him with Child because DHS

did not schedule visits between him and Child in prison. Id. at 11. We are

unpersuaded by Father’s contentions.

      The trial court found that Father has failed to perform his parental

duties, as follows.

      The CUA Case Manager testified on October 3, 2016 that Father
      had been incarcerated since 2012. The CUA Manager had met
      Father at prison and had informed Father of his . . . SCP
      objectives.   The CUA Manager testified that Father had no
      relationship with the Child prior to incarceration; had never
      reached out to the Child; the Father had never sent letters to the
      Child nor requested that the Child visit him at prison. The record
      also demonstrated that Father had been incarcerated since the
      Child was six months old and . . . had no documented or
      concrete plan as to future housing and employment.

Trial Court Opinion, 1/11/17, at 5-6 (citations to record omitted).        The

testimonial evidence supports the court’s findings.

      Miriam Colon, the CUA case manager, testified that, pursuant to his

SCP objectives, Father obtained his GED, and he “completed [a] violence

prevention workshop and his parenting.”     N.T., 10/3/16, at 23.   However,

Ms. Colon testified that Father has never reached out to Child since his

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incarceration.   Id. at 23-24.    Father has never sent Child any letters or

birthday cards, and he has never requested visits with Child. Id. at 23. In

short, Ms. Colon testified that Father does not have a relationship with Child.

Id.

      Father testified that Child was six months old when Father was

incarcerated.    Id. at 33.   Father testified that Child was in placement for

approximately a year and one-half before Father learned that Child was

removed from Mother. Id. at 29. He testified that a caseworker prior to Ms.

Colon told him he could have no contact with Child. Id. at 31. When he

met Ms. Colon in prison, Father testified “I didn’t ask her [if I could have

contact with Child] because I was told before that I can’t have no contact

with him while I was in here.” Id.

      Based on the foregoing testimonial evidence, we discern no abuse of

discretion by the trial court in concluding that Father has failed to perform

his parental duties far in excess of the requisite six-month period preceding

the filing of the termination petition. The record demonstrates that Father

easily yielded to the obstacles posed by his imprisonment in maintaining a

relationship with Child. Indeed, contrary to his parental responsibility while

in prison, Father made no effort to communicate or associate with Child.

See In re Adoption of S.P., supra.

      Moreover, we reject Father’s contention that DHS did not satisfy its

burden of proof regarding the termination of his parental rights because it


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failed to make reasonable efforts to reunify him with Child. In In re D.C.D.,

105 A.3d 662 (Pa. 2014), our Supreme Court held that this Court erred in

reversing the order terminating the father’s parental rights under Section

2511(a)(2) due to the failure of the agency to provide reasonable efforts to

reunify him with his child.             The Court concluded, in part, that no

“Pennsylvania or federal provision requires delaying permanency for a child

due to the failure of an agency to provide reasonable services, when a court

has otherwise held that grounds for termination have been established and

the court has determined that termination is in the best interests of the child

by clear and convincing evidence.” Id. at 676.

       We conclude D.C.D. controls in this matter because, like Section

2511(a)(2), the plain language of Section 2511(a)(1) does not require a

court to deny an involuntary termination petition based solely on the failure

of an agency to provide reasonable reunification services.6          Therefore,

Father’s first issue on appeal fails.7

       In his second issue, Father contends that the record evidence was

insufficient to support termination under Section 2511(b).      Specifically, he

____________________________________________


6
  It is important to note that, in rejecting Father’s contention pursuant to In
re D.C.D., supra, we make no determination regarding whether DHS made
reasonable reunification efforts in this case.
7
  Based on this disposition, we need not consider Father’s claims with
respect to Section 2511(a)(2). See In re B.L.W., supra.




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asserts that DHS “never testified there was not a relationship between father

and his child.     . . .   There was no bonding evaluation performed in this

matter.” Father’s Brief at 13.8 Father’s claim is without merit.

       As stated above, Ms. Colon clearly testified that no relationship exists

between Father and Child.          N.T., 10/3/16, at 23.   Indeed, Child was four

years old at the time of the subject proceedings.            Because the record

demonstrates that Father had not seen or contacted Child since he was, at

most, six months old, when Father was incarcerated, it is unreasonable to

believe that a relationship could exist between them.

       Further, we reject Father’s assertion that the evidence was insufficient

because it did not include a bonding evaluation. It is well-settled that, when

evaluating a parental bond, “the court is not required to use expert

testimony.     Social workers and caseworkers can offer evaluations as well.

Additionally, Section 2511(b) does not require a formal bonding evaluation.”

In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal citations

omitted). Moreover, because there is no evidence in this case that a bond

exists between Father and Child, it was reasonable for the court to infer that

none does. See In re K.Z.S., supra.

       Upon thorough review, the testimonial evidence overwhelmingly

supports the trial court’s conclusion that involuntarily terminating Father’s
____________________________________________


8
  We observe that, unlike the other pages in Father’s brief, this one is
unpaginated.



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parental rights will serve the developmental, physical, and emotional needs

and welfare of Child.     Accordingly, we affirm the decree pursuant to 23

Pa.C.S. § 2511(a)(1) and (b).

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2017




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