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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: G.M.C., A             :   IN THE SUPERIOR COURT OF
MINOR                                     :        PENNSYLVANIA
                                          :
                                          :
APPEAL OF: K.F.C., FATHER                 :
                                          :
                                          :
                                          :
                                          :   No. 3302 EDA 2017

               Appeal from the Decree September 12, 2017
   In the Court of Common Pleas of Philadelphia County Family Court at
                     No(s): CP-51-AP-0001166-2016

BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED MARCH 05, 2018

      K.F.C. (“Father”) appeals from the decree involuntarily terminating his

parental rights to his minor child, G.M.C. (“Child”). Father challenges the

sufficiency of the evidence. We affirm.

      The Philadelphia Department of Human Services (“DHS”) first became

aware of Child and her family shortly after Child’s birth in August 2015,

when it received a report indicating that both Child and her mother

(“Mother”) had tested positive for opiates at Child’s birth. Trial Court

Opinion, 11/3/17, at 1. DHS filed a dependency petition for Child and the

court held a hearing on October 14, 2015, which neither Mother nor Father

attended. Id. at 2. The court adjudicated Child dependent based on Mother’s

and Father’s then-present inability to care for Child and granted full legal

custody to DHS. Id. The court granted both Mother and Father weekly

supervised visits with Child. Id.
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      DHS then, on December 1, 2016, filed a petition to terminate Father’s

parental rights. At a hearing, DHS presented the testimony of the

Community Umbrella Agency (“CUA”) case manager, Michael Flanagan. He

testified that Father’s Single Case Plan (“SCP”) objectives were to obtain

housing; enroll in a dual diagnosis treatment program for substance abuse

and mental health; maintain contact with Flanagan and the CUA; and to

participate in visitation. Notes of Testimony (“N.T.”), 9/12/17, at 8. Flanagan

stated, however, that Father did not meet any of his SCP objectives. Id. He

testified that Father’s home was inappropriate, and he was unable to refer

Father for treatment because he did not maintain contact with the CUA. Id.

      Flanagan further testified that it is his belief that Child is not bonded

with Father. Id. at 12. He said that although Father was offered supervised

visitation with Child at the CUA, Father did not participate in visits. Id. at 9.

Flanagan also explained that Child has lived with maternal grandfather since

she was only a few days old, knows her maternal grandfather as her parent

figure, and would not suffer irreparable harm if Father’s parental rights were

terminated. Id. at 13. Father did not attend the hearing, and his counsel,

who appeared on his behalf, presented no evidence.

      Following the hearing, the trial court entered a decree involuntarily

terminating Father’s parental rights, and entered an order changing the goal

to adoption. Father filed a timely Notice of Appeal to this Court.

      Father raises six issues for our review:


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      1.    Whether the trial court committed reversible error, when it
            involuntarily terminated Father’s parental rights where
            such determination was not supported by clear and
            convincing evidence under the adoption act, 23 P[a].C.S.A.
            §2511(a)(1)[;]

      2.    Whether the trial court committed reversible error, when it
            involuntarily terminated Father’s parental rights where
            such determination was not supported by clear and
            convincing evidence under the adoption act, 23 P[a].C.S.A.
            §2511(a)(2)[;]

      3.    Whether the trial court committed reversible error, when it
            involuntarily terminated Father’s parental rights where
            such determination was not supported by clear and
            convincing evidence under the adoption act, 23 P[a].C.S.A.
            §2511(a)(5)[;]

      4.    Whether the trial court committed reversible error, when it
            involuntarily terminated Father’s parental rights where
            such determination was not supported by clear and
            convincing evidence under the adoption act, 23 P[a].C.S.A.
            §2511(a)(8)[;]

      5.    Whether the trial court committed reversible error when it
            involuntarily terminated Father’s parental rights without
            giving primary consideration to the effect that the
            termination would have on the developmental, physical
            and emotional needs of the child as required by the
            [A]doption [A]ct pursuant to 23 P[a].C.S.A. §2511(b)[;]

      6.    Whether the trial court erred because the evidence was
            overwhelming and undisputed that Father demonstrated a
            genuine interest and sincere, persistent, and unrelenting
            effort to maintain a parent-child relationship with his child.

Father’s Brief at 8.

      When considering an appeal from an order involuntarily terminating

parental rights, we accept as true the trial court’s findings of facts so long as

they are supported by the record, and then determine whether the trial court

made an error of law or abused its discretion in rendering its decision. In re


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Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). A trial court’s decision

constitutes an abuse of discretion only if it is manifestly unreasonable or is

the product of partiality, prejudice, bias, or ill-will. Id.

      The party petitioning for termination bears the burden of proving all

elements of the termination petition by clear and convincing evidence. In re

C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc). Clear and

convincing evidence is evidence 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. (quoting

Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)).

      The termination of parental rights is governed by 23 Pa.C.S. § 2511,

which requires a two-step analysis. In the first step, the party seeking

termination must prove by clear and convincing evidence that the parent’s

conduct meets at least one of the 11 grounds for termination set forth in

Section 2511(a). In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). If the

court determines that the petitioner has proven at least one of the

provisions of Section 2511(a), only then does it proceed to the second step.

Id. In the second step, the court must determine whether, considering the

child’s   developmental,    physical,    and   emotional       needs   and   welfare,

termination is in the best interests of the child. 23 Pa.C.S. § 2511(b); In re

Adoption of S.P., 47 A.3d at 830. In conducting this analysis, the court

should examine the emotional bond between parent and child, with close


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attention to the effect that permanently severing any such bond will have on

the child. In re L.M., 923 A.2d at 511.

      Father argues that the trial court erred and/or abused its discretion in

terminating his parental rights under Section 2511(a)(2) because he has the

present capacity to care for Child. He notes that past incapacity alone is not

a sufficient basis for involuntary termination, citing, In re Adoption of

A.N.D., 520 A.2d 31 (Pa.Super. 1986). He further argues that he was

“allegedly” current with his SCP goals of drug and alcohol and mental health

treatment, and visitation. Father’s Brief at 18. Father contends he has done

so with the intent of being reunified with Child.

      We conclude that the trial court did not commit an error of law or

abuse its discretion in concluding that subsection 2511(a)(2) was met. Here,

competent evidence of record supports the trial court’s decree. In view of

the CUA caseworker’s testimony summarized above, we cannot say that the

trial court abused its discretion in finding that that Father’s repeated and

continued incapacity, abuse, neglect, or refusal has caused Child to be

without essential parental control or subsistence necessary for her physical

and mental well-being. See In re Adoption of M.E.P., 825 A.2d 1266,

1272 (Pa.Super. 2003) (concluding subsection 2511(a)(2) was met where

trial court credited psychologist’s testimony regarding mother’s failure to

perform parental duties and inability to learn to perform them in future).




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     Subsection 2511(a)(2) provides:

        (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.

23 Pa.C.S. § 2511(a)(2).

     To terminate under subsection 2511(a)(2), the court must find three

elements by clear and convincing evidence: (1) the parent’s repeated and

continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse,

neglect or refusal caused the child to be without essential parental care,

control, or subsistence necessary for the child’s physical or mental well-

being; and (3) the parent cannot or will not remedy the causes of the

incapacity, abuse, neglect, or refusal. See In re Adoption of M.E.P., 825

A.2d at 1272.

     In addition, the fact that Child was removed from Father’s custody due

to his inability to care for her approximately two years before the hearing,

together with the evidence of Father’s present incapacity, supports the

conclusion that Father cannot or will not remedy the situation. See id.

Because the court below considered evidence of both past and present



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conduct in reaching its decision, Father’s reliance on In re Adoption of

A.N.D. is misplaced. In re Adoption of A.N.D., 520 A.2d at 35 (“The court

in its formulation, however, combined past evidence of incapacity with a

finding of current incapacity and refusal.”).

       Because we reject Father’s argument that subsection 2511(a)(2) was

not satisfied - i.e., we conclude that issue number 2 above lacks merit - we

need    not   address   Father’s   arguments    disputing   the   trial   court’s

determination that other subsections of Section 2511(a) were also met (i.e.,

issues 1, 3, and 4 above). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super.

2004) (en banc) (stating that on appeal, this Court need only conclude that

trial court properly terminated pursuant to one subsection of Section

2511(a), even though trial court also relied on other subsections).

       In his fifth and sixth issues, Father argues that the trial court erred

and/or abused its discretion in concluding that the best interests of the child

standard under Section 2511(b) was met. He observes that in In re: P.A.B.,

570 A.2d 522 (Pa.Super. 1990), we found it significant that the parental

bond, once destroyed by termination, would be replaced by another bond.

Father argues that the best interests standard was not met here because

cutting the bond between Father and Child would not facilitate putting

another bond in its place.

       The record supports the trial court’s conclusion under Section 2511(b)

that the best interests of the child support termination of Father’s parental


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rights. Our decision in P.A.B. affords no support to Father’s arguments.

Here, unlike in P.A.B., the trial court concluded, based on the CUA

caseworker’s testimony, that Child is not bonded to Father. Rather, her

primary bond is with her foster parent. In addition, the court noted that for

the almost two years before the termination hearing, Father had been

unable to meet Child’s emotional, physical, and developmental needs, or

provide Child with a healthy, safe environment. The record supports the trial

court’s determination that Section 2511(b) was met.

      In summary, we reject Father’s arguments that the trial court

committed an error of law or abuse of discretion. We therefore affirm the

decree of the trial court involuntarily terminating Father’s parental rights.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/18




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