J-S79042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: J.S.D., Jr., A MINOR              :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
                                          :
                                          :
                                          :
 APPEAL OF: J.S.D., FATHER                :        No. 1378 MDA 2018

                Appeal from the Order Entered July 19, 2018
                in the Court of Common Pleas of York County
                    Orphans' Court at No(s): 2018-0012a

BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED APRIL 16, 2019

      J.S.D. (“Father”) appeals from the Order granting the Petition filed by

J.F. and C.F. (“Petitioners”), a married couple, seeking to involuntarily

terminate Father’s parental rights to his minor child, J.S.D., Jr. (“Child”), a

male born in January 2017, pursuant to the Adoption Act, 23 Pa.C.S.A.

§ 2511(a)(1), (5), and (b), so that Petitioners may adopt Child. We affirm.

      On April 12, 2018, Petitioners filed a Petition for Adoption and a Petition

for the involuntary termination of Father’s parental rights to Child (“ITPR
J-S79042-18


Petition”).1 On July 16, 2018, the Orphans’ Court conducted a hearing2 on the

ITPR Petition, at which Petitioners were present with their counsel. Child’s

legal counsel, Jennifer Galloway, Esquire (“Attorney Galloway”), was present

on Child’s behalf.3 Father, who was incarcerated at Dauphin County prison,

was present with his court-appointed counsel.




____________________________________________


1  The Petition also sought to terminate M.L.’s (“Mother”) parental rights to
Child. On July 19, 2018, Mother filed a Consent to Adoption, and Petitioners
filed a Petition to Confirm Consent to Adoption. Mother is not a party to the
instant appeal.

2At a previously-scheduled hearing on June 25, 2018, Mother indicated that
she would consent to Child’s adoption. The Orphans’ Court thereafter
continued the hearing.

3 Although Attorney Galloway identifies herself as Child’s court-appointed
Guardian ad litem (“GAL”) in her appellate brief, from the record, it appears
that Attorney Galloway served as Child’s legal counsel during the hearing.
See generally In re Adoption of L.B.M., 161 A.3d 172, 179-80 (Pa. 2017)
(plurality) (requiring the appointment of separate legal counsel, in addition to
a GAL in contested involuntary termination proceedings). However, a majority
of the L.B.M. Court concluded that counsel may serve both as the GAL,
representing the child’s best interests, and as the child’s counsel, representing
the child’s legal interests, as long as there is no conflict between the child’s
legal and best interests. Id. at 183-93; see also In re D.L.B., 166 A.3d 322,
329 (Pa. Super. 2017) (stating that “separate representation would be
required only if the child’s best interest and legal interests were somehow in
conflict.”). Here, Child was only one-and-a-half years old at the time of the
hearing, and therefore unable to express his preferred outcome. See In re
T.S., 192 A.3d 1030, 1092 (Pa. 2018) (concluding that “if the preferred
outcome of a child is incapable of ascertainment because the child is very
young and pre-verbal, there can be no conflict between the child’s legal
interests and his or her best interests.”). Accordingly, we conclude that there
is no conflict between Child’s legal interests and best interests, and the
dictates of L.B.M. are satisfied.

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     In its Findings of Fact, the Orphans’ Court set forth the factual

background and procedural history of this appeal as follows:

     1. [] Child was born in January 2017, and is one[-]and[-]a[-]half
     (1½) years old.

     2. []Father has been incarcerated during [] Child’s lifetime as
     follows:[FN1]

         a. Sometime prior to January 1, 2017 to January 19, 2017.
         …

         b. Sometime in July 2017 to September 11, 2017. …

         c. April 12, 2018 to current. …

           [FN1]The [c]ourt takes judicial notice of [] [F]ather’s
           criminal record from the Common Pleas Courts Docket
           Sheets on the Unified Judicial System website.

     3. On August 9, 2017, the Court of Common Pleas of the 41st
     Judicial District of Pennsylvania, Perry County Branch, the
     Honorable Kenneth A. Mummah presiding, entered an Order
     [granting L.D. (“Paternal Grandmother”) sole legal and physical
     custody of Child.]

     4. [] Father had only one possible contact with [] [C]hild within
     the six months prior to the filing of the [ITPR Petition], that being[]
     a several[-]hour visit with [] [C]hild at the home of Paternal
     Grandmother.[FN2]

           [FN2]  Throughout [] [F]ather’s testimony, he was
           unable to provide dates credibly. For instance, he
           initially claimed he had custody of [] Child until mid-
           October 2017 and had last seen [] Child in 2018, the
           latter testimony being at complete variance with the
           testimony of the [P]etitioner, whose testimony the
           [c]ourt finds to be credible. After being confronted
           with the conflict during cross-examination, [] [F]ather
           modified his testimony that such contact was
           sometime after his release from incarceration, which
           would have been on September 11, 2017, but prior to


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           Thanksgiving, November 23, 2017, without further
           specificity.

     5. Paternal Grandmother had sole custody of [] Child from July
     2017[,] to January 12, 201[8]. On December 27, 2017, Paternal
     Grandmother and Petitioners initiated the process of transferring
     custody of [] Child to the Petitioners, finalizing such transfer on
     January 12, 2018, by Paternal Grandmother executing
     guardianship papers.

     6. [] Father claims that[,] upon his incarceration in July 2017, he
     provided Paternal Grandmother with access to his bank account,
     containing approximately $16,000.00, for her use to support []
     Child, which funds [] Father claims were misused by Paternal
     Grandmother.

     7. [] Father has no current income or any appreciable assets.

     8. [] Father claims that he was unaware that Paternal
     Grandmother transferred custody of [] Child until being served
     with a copy of the [ITPR Petition].

     9. At all times relevant, [] Father was able to contact Paternal
     Grandmother; [sic] knowing her address and telephone number.

     10. [] Father claims Paternal Grandmother was unwilling to allow
     him to have contact with [] Child after the entry of Judge
     Mummah’s Order dated August 9, 2017.[FN3]

           [FN3]   Apparently, other than the several[-]hour visit.

     11. []Father considered contesting Judge Mummah’s Order dated
     August 9, 2017, but ultimately concluded that he could not afford
     to do so.

     12. [] Father contends his recent criminal record is the product of
     a substance abuse problem[;] he has participated in prison
     treatment programs in an effort to cure this problem[;] and he
     has been clean for 7-8 months.

     13. In contrast, [Father pled guilty to Use/Possession of Drug
     Paraphernalia on June 11, 2018].




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     14. The [c]ourt finds that [] Father continues to suffer from his
     substance abuse problem and has not been able to reach a state
     of true recovery from its ill effects at this time.

     15. [] Father contends that he will be released from incarceration
     sometime in September 2018.

     16. In contrast, [] Father’s criminal record reflects that:

         a) As noted above, he pled guilty to the Use/Possession of
         Drug Paraphernalia with a penalty being assessed. … The
         penalty assessed is unknown, but was filed of record on
         the same day as the hearing, July 16, 2018.

         b) On August 20, 2018, a Revocation Hearing [wa]s
         scheduled to be conducted by the Court of Common Pleas
         of Dauphin County, the Honorable William T. Tully
         presiding; presumably to determine whether [] Father
         [would admit] to violating his probation. …

Orphans’ Court Order, 7/19/18, at 1-5 (footnotes in original).

     The Orphans’ Court granted the [ITPR Petition] on July 19, 2018. Father

timely filed a Notice of Appeal and Concise Statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

     On appeal, Father raises the following issue for our review:

     I. Whether the [Orphans’ C]ourt erred as a matter of law and
     abused its discretion by granting the request of Petitioners to
     terminate [Father’s] parental rights when Petitioners failed to
     present clear and convincing evidence under 23 Pa.C.S.A. [§]
     2511(a)(1) and (5)?




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Father’s Brief at 5.4

       Father argues that there was insufficient evidence presented at the

termination hearing to show that the requirements of section 2511(a)(1) and

(5) were met by clear and convincing evidence. See id. at 12-19. Father

argues that he provided Paternal Grandmother almost $16,000.00 for Child’s

care. Id. at 15. Father acknowledges that “he was unable to stay in contact

with [Child,]” but asserts that Paternal Grandmother prevented him from

having any contact with Child, including telephone calls. Id. at 16. Father

urges that the trial court failed to give sufficient weight to Child’s best interests

and the bond that may have existed between Child and Father. Id. at 18-19.

       In reviewing an appeal from an order terminating parental rights, we

adhere to the following standard:

       [A]ppellate courts must apply an abuse of discretion standard
       when considering a trial court’s determination of a petition for
       termination of parental rights. As in dependency cases, our
       standard of review requires an appellate court to accept the
       findings of fact and credibility determinations of the trial court if
____________________________________________


4 While Father stated his issue somewhat differently in his Concise Statement,
we find it sufficiently preserved for this Court’s review. We additionally note
that Father waived any challenge to the sufficiency of the evidence to support
the termination of his parental rights under section 2511(b), as he did not
challenge section 2511(b) in either his Concise Statement or the Statement
of Questions Involved portion of his brief. See Krebs v. United Ref. Co. of
Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives
issues that are not raised in both his concise statement of errors complained
of on appeal and the statement of questions involved in his brief on appeal).
Nevertheless, we will consider the sufficiency of the evidence supporting
termination under section 2511(b), as Father discussed section 2511(b) in the
Argument section of his brief, and the Orphans’ Court considered Child’s best
interest in its Order.

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      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. As has been often
      stated, an abuse of discretion does not result merely because the
      reviewing court might have reached a different conclusion.
      Instead, a decision may be reversed for an abuse of discretion
      only upon demonstration of manifest unreasonableness, partiality,
      prejudice, bias, or ill-will.

      [U]nlike trial courts, appellate courts are not equipped to make
      the fact-specific determinations on a cold record, where the trial
      judges are observing the parties during the relevant hearing and
      often presiding over numerous other hearings regarding the child
      and parents. Therefore, even where the facts could support an
      opposite result, as is often the case in dependency and
      termination cases, an appellate court must resist the urge to
      second guess the trial court and impose its own credibility
      determinations and judgment; instead we must defer to the trial
      judges so long as the factual findings are supported by the record
      and the court’s legal conclusions are not the result of an error of
      law or an abuse of discretion.

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (internal citations

omitted).

      The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). “The

standard of clear and convincing evidence is defined as testimony that is so

clear, direct, weighty and convincing as to enable the trier of fact to come to

a clear conviction, without hesitance, of the truth of the precise facts in issue.”

Id. (citation omitted).

      This Court may affirm the trial court’s decision regarding the termination

of parental rights with regard to any one subsection of section 2511(a), along

with consideration of subsection 2511(b). See In re B.L.W., 843 A.2d 380,

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384 (Pa. Super. 2004) (en banc).          Here, we will consider subsections

2511(a)(1) and (b), which provide as follows:

      § 2511. Grounds for involuntary termination

      (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 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)(1), (b).

      To terminate parental rights pursuant to Section 2511(a)(1), the person

or agency seeking termination must demonstrate through clear and

convincing evidence that, for a period of at least six months prior to the filing

of the petition, the parent’s conduct demonstrates a settled purpose to

relinquish parental rights or that the parent has refused or failed to perform




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parental duties. In Re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super.

2003).

      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).

In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).

      Additionally, in regard to incarceration and preservation of parental

rights, we have stated the following:

      [I]ncarceration of a parent does not, in itself, provide sufficient
      grounds for termination of parental rights; however, an
      incarcerated parent’s responsibilities are not tolled during his
      incarceration. … [P]arental duty requires that the parent not yield
      to every problem, but must act affirmatively, with good faith
      interest and effort, to maintain the parent-child relationship to the
      best of his ability, even in difficult circumstances.

In the Interest of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (citations

omitted). “Parental rights are not preserved by waiting for a more suitable or

convenient time to perform one’s parental duties while others provide the child

with his or her physical and emotional needs.” In re K.Z.S., 946 A.2d 753,

759 (Pa. Super. 2008) (citations omitted).

      The focus in terminating parental rights under section 2511(a) is on the

parent, but it is on the child pursuant to section 2511(b). See In re Adoption

of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc). In reviewing the

evidence in support of termination under section 2511(b), our Supreme Court

has stated as follows:


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        [I]f the grounds for termination under subsection (a) are met, a
        court “shall give primary consideration to the developmental,
        physical and emotional needs and welfare of the child.” 23
        Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the
        child have been properly interpreted to include “[i]ntangibles such
        as love, comfort, security, and stability.” In re K.M., 53 A.3d
        781, 791 (Pa. Super. 2012). In In re E.M., [533 Pa. 115, 121,
        620 A.2d 481, 485 (Pa. 1993)], this Court held that the
        determination of the child’s “needs and welfare” requires
        consideration of the emotional bonds between the parent and
        child. The “utmost attention” should be paid to discerning the
        effect on the child of permanently severing the parental bond. In
        re K.M., 53 A.3d at 791.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).

        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). Although it is often wise to have a bonding evaluation and

make it part of the certified record, “[t]here are some instances … where direct

observation of the interaction between the parent and the child is not

necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d

753, 762 (Pa. Super. 2008).

        Further,

        concluding a child has a beneficial bond with a parent simply
        because the child harbors affection for the parent is not only
        dangerous, it is logically unsound. If a child’s feelings were the
        dispositive factor in the bonding analysis, the analysis would be
        reduced to an exercise in semantics as it is the rare child who,
        after being subject to neglect and abuse, is able to sift through
        the emotional wreckage and completely disavow a parent …. Nor

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      are we of the opinion that the biological connection between [the
      parent] and the children is sufficient in of itself, or when
      considered in connection with a child’s feeling toward a parent, to
      establish a de facto beneficial bond exists. The psychological
      aspect of parenthood is more important in terms of the
      development of the child and [his or her] mental and emotional
      health than the coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and

quotation marks omitted). Thus, the court may emphasize the safety needs

of the child.   See In re K.Z.S., 946 A.2d at 763 (affirming involuntary

termination of parental rights, despite existence of some bond, where

placement with mother would be contrary to child’s best interests).            “[A]

parent’s basic constitutional right to the custody and rearing of his or her child

is converted, upon the failure to fulfill his or her parental duties, to the child’s

right to have proper parenting and fulfillment of [the child’s] potential in a

permanent, healthy, safe environment.”         In re B.,N.M., 856 A.2d at 856

(internal citations omitted).

      In its Order, the Orphans’ Court set forth the following Conclusions of

Law regarding its decision to terminate Father’s parental rights pursuant to

subsection 2511(a)(1):

      1. Other than a single visit, [] Father has had no contact with []
      Child; both during and for periods he was released from
      incarceration[,] for a period in excess of six (6) months.

      2. [] Father did not exercise reasonable firmness in resisting
      obstacles created by his incarceration and Judge Mummah’s Order
      dated August 9, 2017, nor did he employ available resources to
      preserve the parental relationship with [] Child.




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      3. [] Father took no steps to use the funds in his bank account to
      retain legal counsel to contest [the Order granting Paternal
      Grandmother sole physical and legal custody of Child].

      4. Since at least July 2017, [] Father has not communicated with
      [] Child directly via telephone, mail, or any other means.

      5. There is no evidence that [] Father sent [] [C]hild any presents
      or cards for Christmas 2017, or in celebration of [] [C]hild’s first
      birthday in January 2018.

      6. [] Father’s single visit with [] Child is not sufficient to stop the
      six-month period from running under section 2511(a). Since []
      Father otherwise refused or failed to perform his parental duties
      for six months, the requirements of [section] 2511(a)(1) are met.

      …

      8. For approximately ten months, [] Father failed to fulfill his
      parental obligations to [] Child, and this lack of concern for [] Child
      is not negated by a singular visit. … [] Father has clearly not used
      the resources available to him to maintain a place of importance
      in [] Child’s life. Since August 2017, [] Father consistently has
      not maintained contact with [] Child, nor has he used the means
      available to him to attempt to overcome any obstacles impeding
      his relationship [] [Child].

      …

      11. With respect to Section 2511(a)(1), the [c]ourt, therefore,
      concludes that [] Father, by clear and convincing evidence of
      conduct continuing for a period of at least six months immediately
      proceedings the filing of the petition[,] evidenced a settled
      purpose of relinquishing his parental claim to [] Child and refused
      and failed to perform his parental duties.

Orphans’ Court Order, 7/9/18, at 6-8; see also 1925(a) Opinion, 8/22/18, at

3-4 (emphasizing that Father only visited Child once within six months prior

to the filing of the ITPR Petition; Father had no contact with Child during the




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period of time he was not in jail; and Father did not otherwise attempt to

contact Child).

      Additionally, the Orphans’ Court considered the best interest of Child

pursuant to subsection 2511(b), in relevant part, as follows:

      27. The [c]ourt concludes that no bond exists between [] Father
      and Child; such bond may have begun formulating during the first
      six (6) months of [] Child’s life, but it has been severed within the
      last year.

      28. The [c]ourt specifically considered whether [] Child has
      developed a meaningful bond with [] Petitioners.

      29. The [c]ourt concludes that, at this point, [] Child has
      established an emotional parent-child bond with Petitioners[,]
      who have provided stability, safety, and security, regularly and
      consistently, to [] Child over an extended period of time; that is,
      since early January 2018.

      30. Based upon … the foregoing, the [c]ourt concludes that it is in
      the best interest of [] Child to terminate the parental rights of []
      Father.

Orphans’ Court Order, 7/19/18, at 13.

      Our review discloses that the Orphans’ Court’s decision to terminate

Father’s parental rights under section 2511(a)(1) and (b) is supported by

competent, clear and convincing evidence. See In re Adoption of S.P., 47

A.3d at 826-27. We discern no abuse of discretion by the Orphans’ Court in

finding that no bond between Father and Child exists, and that Child has

instead established a bond with Petitioners.




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       Based upon the foregoing, we affirm the Orphans’ Court’s termination

of Father’s parental rights to Child pursuant to subsections 2511(a)(1) and

(b).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/16/2019




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