J-S66001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: Z.S.W. AKA          :   IN THE SUPERIOR COURT
 Z.S.I.W., A MINOR                       :        OF PENNSYLVANIA
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 APPEAL OF: S.W., FATHER                 :   No. 1265 EDA 2019

                 Appeal from the Order Entered April 5, 2019
            In the Court of Common Pleas of Philadelphia County
              Juvenile Division at No: CP-51-DP-0000129-2017

 IN THE INTEREST OF: Z.S.W. AKA          :   IN THE SUPERIOR COURT
 Z.S.I.W., A MINOR                       :        OF PENNSYLVANIA
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 APPEAL OF: S.W., FATHER                 :   No. 1266 EDA 2019

                Appeal from the Decree Entered April 5, 2019
            In the Court of Common Pleas of Philadelphia County
              Juvenile Division at No: CP-51-AP-0000158-2018

BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                             Filed: April 16, 2020

      S.W. (“Father”) appeals from the decree entered April 5, 2019, which

terminated involuntarily his parental rights to his son, Z.S.W. (“Child”), born

in January 2016. In addition, Father appeals from the order entered that same
J-S66001-19



day, which changed Child’s permanent placement goal from reunification to

adoption.1 After careful review, we affirm.

       We summarize the relevant facts and procedural history of this matter

as follows. The Philadelphia Department of Human Services (“DHS”) filed a

dependency petition with respect to Child on January 18, 2017. DHS averred

that it became involved with Child at the time of his birth in January 2016,

due to Mother’s history of drug use and her prior involvement with the agency.

DHS averred that it remained involved with Child throughout the first year of

his life, which culminated in a failed attempt to obtain protective custody in

December 2016. According to the dependency petition, DHS discovered that

Child and Mother were residing with Father, whose home was inappropriate

due to structural damage and safety hazards. When DHS arrived at the home,

Father and Mother absconded with Child and subsequently failed to respond

to the agency’s attempts to contact them. The trial court entered an order

adjudicating Child dependent on January 23, 2017. The order permitted Child

to remain in Mother’s care unless she tested positive for illegal substances or

failed to attend random drug screens. DHS obtained protective custody of




____________________________________________


1 The trial court entered a separate decree, in which it terminated involuntarily
the parental rights of Child’s mother, H.Y. (“Mother”). Mother did not appeal
the termination of her parental rights or the change of Child’s goal.




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Child on February 15, 2017, reportedly after Mother tested positive for PCP.

The court entered a shelter care order on February 17, 2017.2

       At the time of Child’s adjudication of dependency, Father’s whereabouts

were unknown. Father was facing drug charges and a warrant was out for his

arrest. N.T., 12/13/18, at 62. Father remained “on the run” until August

2017, when he finally turned himself in. Id. at 62-63. On March 2, 2018,

DHS filed a petition to terminate Father’s parental rights to Child involuntarily

as well as a petition to change Child’s permanent placement goal from return

to parent or guardian to adoption. As detailed below, Father had no contact

with Child from the time he entered foster care until a visit at the prison in

September 2018. Id. at 45, 48-49.

       The trial court conducted a hearing on the termination and goal change

petitions beginning on September 24, 2018. Father remained incarcerated at

the start of the hearing and participated via telephone. He was released from

incarceration in October 2018 and he appeared in person during the next two

days of the hearing on December 13, 2018, and April 5, 2019. Following the

hearing, the court entered a decree terminating Father’s parental rights to

Child involuntarily and an order changing Child’s permanent placement goal

from return to parent or guardian to adoption. Father timely filed notices of




____________________________________________


2DHS filed an amended dependency petition on February 28, 2017, although
Child was already dependent.


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appeal on May 1, 2019, along with concise statements of errors complained

of on appeal.

       Father now raises the following claims for our review:

       1. Whether the [t]rial [c]ourt erred by terminating the parental
       rights of [Father] under 23 Pa.C.S.A. §[]2511(a)(2)?

       2. Whether [t]rial [c]ourt erred by terminating the parental rights
       of [Father] under 23 Pa.C.S.A. §[]2511(a)(5)?

       3. Whether [t]rial [c]ourt erred by terminating the parental rights
       of [Father] under 23 Pa.C.S.A. §[]2511(a)(8)?

       4. Whether the [t]rial [c]ourt erred by finding, under 23 Pa.C.S.A.
       §[]2511(b), that termination of [Father’s] parental rights best
       serves the child’s developmental, physical[,] and emotional needs
       and welfare?

Father’s Brief at 5 (trial court answers omitted).3

       We address Father’s claims mindful of the following 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
____________________________________________


3  Father waived any challenge to the goal change order by failing to develop
it in his brief and by failing to include it in his statement of questions involved.
See In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017) (“[T]his
Court will not review a claim unless it is developed in the argument section of
an appellant’s brief, and supported by citations to relevant authority. . . .
Further, it is well-settled that issues not included in an appellant’s statement
of questions involved . . . are waived.”). Further, even if had Father preserved
a challenge to the goal change order for our review, our decision to affirm the
decree terminating his parental rights would render that challenge moot. See
In the Interest of D.R.-W., 2020 Pa. Super. LEXIS 54 at *23 (Pa. Super.
filed Jan. 29, 2020) (“[E]ven if Father had not waived his goal change claim,
it would be moot in light of our decision to affirm the court’s termination
decrees.”).

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     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).

     Section 2511 of the Adoption Act governs involuntary termination of

parental rights. See 23 Pa.C.S.A. § 2511. It 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 the instant matter, the trial court terminated Father’s parental rights

pursuant to Section 2511(a)(2), (5), (8), and (b). We need only agree with

the court as to any one subsection of Section 2511(a), in addition to Section

2511(b), 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




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decision to terminate pursuant to Section 2511(a)(2) 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:

                                       ***

              (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).

      We begin by considering whether the trial court committed an abuse of

discretion by terminating Father’s parental rights to Child 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)

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      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). Significantly, “a parent’s incarceration is relevant to the [S]ection

[2511](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) (citation omitted).

      Father argues that DHS failed to present clear and convincing evidence

to terminate his parental rights involuntarily. Father asserts that he complied

with his Single Case Plan (“SCP”) objectives and made efforts to remedy the

causes of Child’s placement in foster care. Father’s Brief at 12. Father also

contends that DHS failed to make reasonable efforts to reunify him with Child.

Id. at 10. Specifically, he asserts that DHS did not make reasonable efforts

to notify him that Child was in foster care and did not inform him of his SCP

objectives until September 2018. Id. at 12.

      The trial court did not file an opinion explaining its decision to terminate

Father’s parental rights but instead issued a statement directing our attention


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to its findings of fact on the record at the conclusion of the hearing on April 5,

2019. The court found as follows, in relevant part:

            With respect to 2511(a)(2), I will find that 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 will not -- cannot or will not be remedied by the parent.

            Again, as I said, there were myriad of issues for this case:
      [i]nadequate housing; substance abuse; Father’s incarceration
      shortly after [Child] came into care; Father’s incarceration for
      most of the time [Child] was in care. With respect to some of the
      exhibits, I believe Father -- entered in as DHS Exhibit-4, was
      Father’s criminal history. Father has a very lengthy criminal
      history that shows Father being in and out of incarceration.

             And so, while he is out now, given that he has been in and
      out of incarceration long before [Child] was even born, I have no
      reason to believe that Father can keep himself out of
      incarceration for enough time for [Child] to be able to be
      effectively reunified with him.

N.T., 4/5/19, at 27-28.

      Our review of the record supports the trial court’s decision. As explained

above, the court adjudicated Child dependent in January 2017 and placed him

in foster care in February 2017. At the time of Child’s adjudication, Father’s

whereabouts were unknown. DHS attempted to contact Father by sending

letters to his last known address. N.T., 12/13/18, at 12-13. However, Father

had no communication with DHS. Id. at 12, 17, 21. Father testified that he

“couldn’t really come in to see” Child during that time because there was a

warrant out for his arrest related to drug possession charges and he was “on

the run[.]” Id. at 62. He stated that he did not turn himself in to the police

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until approximately August 2017. Id. at 63. He remained incarcerated until

October 2018. Id. at 64-65.

      Importantly, as the trial court found, this was not Father’s first criminal

conviction. The record reveals that Father has an extensive criminal history

dating back nearly twenty years. The court admitted into evidence a copy of

Father’s criminal history as DHS Exhibit 4. The exhibit indicates that Father

has had repeated convictions of possession with intent to deliver a controlled

substance, including convictions in 2000, 2007, 2011, and 2018.         Father’s

status as a frequent recidivist supports the conclusion that he is incapable of

providing Child with parental care and that he cannot or will not remedy his

parental incapacity.

      Father’s criminal history is not the only factor indicative of his parental

incapacity. At the time of Child’s placement in February 2017, DHS did not

believe that Father was an appropriate caretaker for Child based on his lack

of appropriate housing. Id. at 17. After Father’s release from incarceration

in October 2018, he returned to the same home where he had resided prior

to Child’s placement. Id. at 61. Community Umbrella Agency (“CUA”) case

manager Lakesha Godwin testified that she evaluated the home after Father’s

release and that it remained inappropriate. Id. at 55. Specifically, the home

had “exposed wiring” and needed repairs to the floor and ceiling. Id. There

were also tools cluttering the home. Id. Father provided no clear explanation

as to why the home remained inappropriate after over a year and a half, and

no timeline as to when the necessary repairs would be complete. He stated,

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“it’s my dad’s house . . . . And I’ve been trying to tell my pop . . . . It just --

he takes so long. He doesn’t fix the house, so it’s like -- he leaves open holes,

well, whatever is supposed to be fixed. But it’s getting fixed, though.” Id. at

69. Father also insisted that he was not planning to stay at the home “that

long” and that he would take Child to live at his sister’s house. Id. at 81-82.

       Finally, we reject Father’s argument that DHS failed to provide him with

reasonable reunification efforts.       Father waived this argument by failing to

include it in his concise statement and statement of questions involved. See

M.Z.T.M.W., 163 A.3d at 466 (“[i]t is well-settled that issues not included in

an appellant’s . . . concise statement of errors complained of on appeal are

waived.”). Even if Father had preserved this argument for our review, it would

be meritless. Our Supreme Court has held that reasonable efforts are not a

prerequisite to the involuntary termination of parental rights pursuant to

Section 2511(a)(2). See In re D.C.D., 105 A.3d 662 (Pa. 2014). Moreover,

the whole premise of Father’s reasonable efforts argument supports rather

than contradicts the conclusion that he is incapable of parenting Child. Father

argues that he did not realize Child was in foster care until at least December

2017, if not later, because DHS failed to inform him.4 Father’s Brief at 6-7,

____________________________________________


4 Father’s argument on appeal contradicts his testimony during the hearing
that he found out Child was in foster care prior to his incarceration and that
he turned himself in because he had been living with his sister and hoped that
DHS would consider placing Child with her. See N.T., 12/13/18, at 72 (“I was
staying there at the time, until they told me that I couldn’t stay there if [Child]
was supposed to come there. So at that time, I was supposed to turn myself
in, and that’s what I did.”).

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12. The implication of Father’s argument is that he was unaware of Child’s

whereabouts, had no contact with Child, and apparently made no effort at all

to contact Child for approximately a year. This argument only confirms that

Father lacks the commitment, maturity, and stability necessary to serve as

Child’s parent. Therefore, we discern no abuse of discretion or error of law by

the trial court in terminating Father’s parental rights to Child involuntarily

pursuant to Section 2511(a)(2).

      We next consider the trial court’s decision to terminate Father’s parental

rights to Child pursuant to Section 2511(b):

      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 [S]ection 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 any existing
            parent-child bond can be severed without detrimental
            effects on the child.




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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).

      Father argues once again that DHS failed to present clear and convincing

evidence to terminate his parental rights involuntarily. He maintains that DHS

presented little evidence regarding the bond he shares with Child and that

what evidence DHS did present demonstrated that Child was happy to see him

during visits. Father’s Brief at 15. Father also emphasizes that DHS did not

present expert testimony regarding the existence of a parental bond. Id.

      The trial court found as follows at the conclusion of the hearing on April

5, 2019:

             With respect to Father, the testimony was that for the --
      almost the entire time [Child] was in care, Father was
      incarcerated. And there were absolutely no visits and that the
      only visits occurred after Father came out of prison. And there
      were only about six or seven visits. In fact, the testimony of CUA
      was for the entire life of the case there were only six visits. And
      all of those visits occurred after Father had been released from
      prison in -- I believe it was, September or October of 2018.

             Given that testimony, I am going to find that there is not a
      significant enough bond between [Child] and Father that would
      indicate that this court’s termination of Father’s parental rights
      pursuant to 2511(b) would cause any detrimental impact to
      Father. [sic]

            In addition, this court will find that based on the testimony
      of CUA, which I found credible regarding the relationship between
      [Child] and his foster parent, any potential minor issues [Child]
      may have, if any, of not seeing his father again . . . would be
      overcome by the relationship that he has with his foster parent.
      That’s a home that he’s spent a significant amount of time in.


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       And, in fact, it would be more detrimental for him to be removed
       from that home at this point in time.

N.T., 4/5/19, at 29-30.

       The trial court’s findings contain multiple relatively minor inaccuracies.

As detailed above, Father had no contact with Child for over a year and a half

after Child’s placement in foster care in February 2017. Father’s first visit with

Child occurred in September 2018. N.T., 12/13/18, at 45, 48-49. Contrary

to the court’s findings, both this visit and the subsequent visit in October 2018

took place while Father was in prison. Id. In addition, Father had more than

just six visits with Child during the life of the case. The court’s finding that

“there were only six visits” appears to derive from the testimony of Ms. Godwin

on December 13, 2018, that Father had visited Child six times as of that date.

Id. at 37. However, it is clear that Father continued to visit with Child after

December 13, 2018. While the record does not contain an exact record of

attendance, CUA case manager June Morrison testified on April 5, 2019, that

she “was just assigned to the case,” apparently sometime after January 2019,

and that Father had failed to attend four of the nine possible visits since her

assignment.5 Id. at 6.

       Regardless of the inaccuracies in the trial court’s findings, it is clear that

Father has had only minimal contact with Child. Mother testified that Father


____________________________________________


5Ms. Morrison acknowledged that Father called in advance and “let me know
why he did not make those visits.” N.T., 4/5/19, at 13.


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was largely uninvolved with Child during the first year of his life. Id. at 96

(“He got involved when he was three days old to a month old, and then from

a month old to one and a half, he stopped.”). The court placed Child in foster

care when he was a year old, and Child did not see Father again until he was

over two and a half years old. Any subsequent contact between Child and

Father was sporadic. While Child responded positively to Father during their

limited interactions together, the record is still more than sufficient to support

the court’s conclusion that Father and Child do not share a significant bond.

See Matter of Adoption of M.A.B., 166 A.3d 434, 449 (Pa. Super. 2017)

(“[A] child develops a meaningful bond with a caretaker when the caretaker

provides stability, safety, and security regularly and consistently to the child

over an extended period of time.”).6

       As the trial court explained, another critical factor in its Section 2511(b)

analysis was Child’s positive relationship with his pre-adoptive foster family.

See T.S.M., 71 A.3d at 268 (“Common sense dictates that courts considering

termination must also consider whether the children are in a pre-adoptive

home and whether they have a bond with their foster parents.”). Child resided

in the same foster home throughout his placement. N.T., 12/13/18, at 41-



____________________________________________


6 It is important to note that the trial court did not need expert testimony in
order to reach this conclusion. See In re K.K.R.-S., 958 A.2d 529, 533, (Pa.
Super. 2008) (“In analyzing the parent-child bond, the [trial] court is not
required by statute or precedent to order a formal bonding evaluation be
performed by an expert.”).

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42. Ms. Godwin testified that Child is affectionate with his foster family and

comfortable in the home. Id. at 42. Further, Child has a positive relationship

with the other foster child in the home who is “also going to be adopted . . .

if not already adopted[.]” Id. at 44. Given this evidence, we discern no abuse

of discretion of error of law by the court in terminating Father’s parental rights

to Child involuntarily pursuant to Section 2511(b).

      Based on the foregoing analysis, we conclude that the trial court did not

abuse its discretion or commit an error of law by terminating Father’s parental

rights to Child involuntarily. In addition, Father waived any challenge to the

order changing Child’s permanent placement goal from return to parent or

guardian to adoption. We therefore affirm the April 5, 2019 decree and order.

      Decree affirmed. Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/20




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