J-S43016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: N.M.D.                                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
APPEAL OF: E.S., FATHER                        :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 90 MDA 2016


               Appeal from the Decree Entered January 4, 2016
              In the Court of Common Pleas of Lancaster County
                    Orphans’ Court at No(s): 1709 of 2015


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                                FILED AUGUST 23, 2016

       Appellant, E.S. (“Father”), appeals from the decree entered January 4,

2016, in the Court of Common Pleas of Lancaster County, involuntarily

terminating his parental rights to N.M.D. or N.D. (“Child”) (born in

September 2014), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1),

(2), (5), and (b).1 We affirm.

       Mother has a long history with Lancaster County Children and Youth

Social Service Agency (the “Agency”) since well before Child’s birth. Child

has two older siblings by Mother, neither of whom are Father’s biological
____________________________________________


1
   T.N.A.D. a/k/a T.N.D. (“Mother”) is not a party to this appeal nor did she
file a separate appeal.
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children. Child’s older half-brother, O.M.D. (“Half-Brother”) was adopted in

2011, and Child’s older half-sister, A.D.D. (“Half-Sister”) was adjudicated

dependent and placed in foster care in 2012. On May 16, 2014, the Agency

received a report that Mother was pregnant, using drugs, not receiving any

prenatal care, and prostituting herself for a place to live. The Agency

scheduled a home visit in May 2014, but the address provided to them was a

place of business.

      On September 13, 2014, the Agency discovered Mother gave birth to

Child and tested positive for PCP, “a ‘dissociative anesthetic’” whose “effects

are trance-like, and patients experience a feeling of being ‘out of body’ and

detached from their environment.” Partnership for Drug Free Kids, available

at http://www.drugfree.org/drug-guide/pcp/ (last visited 8/10/16). Although

paternity was undetermined, Father was present for Child’s birth, which was

the first and only time he ever saw Child. Mother provided the Agency with

names of several men as putative fathers for Child.

      On September 16, 2014, Child was placed into the temporary physical

and legal custody of the Agency. On September 24, 2014, the trial court

accepted the master’s recommendation that Child continue in foster care.

Child was adjudicated dependent at an adjudication hearing on October 20,

2014. Mother was not offered a child permanency plan for reunification.

      Nine days after Child’s birth, Father was arrested and charged with

possession with intent to deliver, possession with intent to distribute


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narcotics, possession of a controlled substance, possession of marijuana,

and possession of drug paraphernalia. The Agency discovered Father’s

location in prison and obtained a court order for genetic testing between

Father and Child. The results of the genetic test established paternity

between Father and Child.

      On November 5, 2014, a child permanency plan was court-approved

for Father, which set the goal of reunification with Child. Father’s goals

were: (1) to cooperate with the Agency to assess his current situation; (2)

to improve mental health functioning to the extent he can care for Child; (3)

to use good parenting skills; (4) to be financially stable in order to provide

for himself and Child; (5) to obtain a home free and clear of hazard; and (6)

to maintain ongoing commitment to Child.

      On March 26, 2015, Father had a probation/parole violation hearing,

resulting in a state prison sentence of one to two years. While incarcerated,

Father sent six letters to the Agency pursuant to his ongoing commitment

objective. Father also completed one relevant program, Violence Prevention,

Moderate Intensity. Father was enrolled in a therapeutic community

program, providing cognitive behavioral therapy, but was dismissed for, of

all things, putting laxatives in the drinks of other program attendees. Father

gained re-entry into the program only to be terminated again for smoking a

cigarette in his cell. Father’s initial release date, September 2015, was




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deferred because of these two prison infractions. Father will be released

from jail at the earliest in May 2016 or at the latest in September 2016.

       On July 30, 2015, the Agency filed a petition to involuntarily terminate

Mother’s and Father’s parental rights to Child. Mother signed a consent to

adoption on August 12, 2015. On September 21, 2015, the trial court

conducted a termination hearing and issued a decree terminating Mother’s

parental rights only. The trial court rescheduled the hearing for Father

because he was unable to participate due to a connection problem at the

prison.

       At the rescheduled termination hearing on January 4, 2016, Ashley

Zuver, the Agency caseworker, and Father testified. Father participated by

telephone     from     Laurel    Highlands     Correctional   Institution   and   was

represented by counsel. On the same day, the trial court entered a decree

involuntarily terminating Father’s parental rights to Child. Thereafter, the

trial court immediately held a permanency review hearing, ordering Child to

remain at the pre-adoptive resource home and changing Child’s permanency

goal to adoption.2




____________________________________________


2
  Father also filed a notice of appeal from the order changing the Child’s
permanency goal to adoption, which was assigned a separate docket number
and is disposed of therein. See In re N.D., 97 MDA 2016.




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       Father timely appealed. Father raises the following issue:3

       1. Where Father was incarcerated prior to learning that he was
          the parent of a dependent child; where he, while
          incarcerated, initiated frequent contact with the Agency and
          sought visitation opportunities with his child; where there
          were few remedial programs available in prison; and where
          his maximum release date was less than a year from the date
          of the termination hearing, was it an abuse of discretion to
          grant the Agency’s petition to terminate?

Father’s Brief, at 11.4

       Our standard of review regarding orders terminating parental rights is

as follows:




____________________________________________


3
  We note Father filed one brief, raising two issues in the statement of
questions involved portion: (1) challenging the decree terminating his
parental rights; and (2) challenging the order changing the child
permanency goal to adoption. Because Father’s appeal challenging the
permanency goal to adoption has been assigned a different docket number,
Father’s second issue was omitted as it was addressed in In re N.D., 97
MDA 2016.
4
  In his statement of errors, we note that Father asked this Court to consider
whether the trial court erred in finding the Agency met its burden to
terminate Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(8).
Although the trial court stated, in its opinion, that the Agency requested
termination under subsections (a)(1), (2), (5), and (8), we note the Agency
only sought termination pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (5)
as to Child. See Petition for Involuntary Termination, 7/30/15, at 3.

  Additionally, the trial court entered a decree terminating Father’s parental
rights under subsections (a)(1), (2), and (5). See Decree, 1/4/16, at 1-2.
Therefore, this issue is moot. Additionally, Father waived this issue because
he did not raise it in his brief. See Krebs v. United Refining Co. of Pa.,
893 A.2d 776, 797 (Pa. Super. 2006).




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      When reviewing an appeal from a decree terminating parental
      rights, we are limited to determining whether the decision of the
      trial court is supported by competent evidence. Absent an abuse
      of discretion, an error of law, or insufficient evidentiary support
      for the trial court’s decision, the decree must stand. Where a
      trial court has granted a petition to involuntarily terminate
      parental rights, this Court must accord the hearing judge’s
      decision the same deference that we would give to a jury
      verdict. We must employ a broad, comprehensive review of the
      record in order to determine whether the trial court’s decision is
      supported by competent evidence.

In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005) (citation omitted). In

termination cases, 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. See id. at 806.

      The trial court is free to believe all, part, or none of the evidence

presented and is likewise free to make all credibility determinations and

resolve conflicts in the evidence. See In re M.G., 855 A.2d 68, 73-74 (Pa.

Super. 2004). If competent evidence supports the trial court’s findings, we

will affirm even if the record could also support the opposite result. See In

re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Additionally,

this Court “need only agree with [the trial court’s] decision as to any one

subsection in order to affirm the termination of parental rights.” In re

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

      In terminating Father’s parental rights, the trial court relied upon

sections 2511(a)(1), (2), and (5), and (b) of the Adoption Act.       We need

only agree with the trial court as to any one subsection of § 2511(a), as well



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as § 2511(b), in order to affirm. See In re B.L.W., 843 A.2d 380, 384 (Pa.

Super. 2004) (en banc). Here, we analyze the trial court’s decision to

terminate under § 2511(a)(2) and (b), which provide 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.

     To terminate parental rights pursuant to § 2511(a)(2), the moving

party must produce clear and convincing evidence regarding the following

elements: (1) 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 his physical or

mental well-being; and (3) the causes of the incapacity, abuse, neglect or

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refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa. Super. 2003).

      “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).

      Further, parents are required to make diligent efforts towards the

reasonably prompt assumption of full parental responsibilities. See In re

A.L.D. 797 A.2d 326, 340 (Pa.Super. 2002). A parent’s vow to cooperate,

after a long period of uncooperativeness regarding the necessity or

availability   of   services,   may   properly   be   rejected   as   untimely   or

disingenuous. See id.

      In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme

Court addressed the relevance of incarceration in termination decisions

under § 2511(a)(2). There, the Court held that

      incarceration is a factor, and indeed can be a determinative
      factor, in a court’s conclusion that grounds for termination exist
      under § 2511(a)(2) where the repeated and continued incapacity
      of a parent due to incarceration has caused the child to be
      without essential parental care, control or subsistence and that
      the causes of the incapacity cannot or will not be remedied.

Id., at 828.

      With respect to § 2511(b), this Court has explained the requisite

analysis as follows:

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      [S]ubsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa.Super. 2005), this Court stated,
      “Intangibles such as love, comfort, security, and stability are
      involved in the inquiry into the needs and welfare of the child.”
      In addition, we instructed that 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. However, in cases where there is no evidence of a
      bond between a parent and child, it is reasonable to infer that no
      bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super.
      2008). Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.
      Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

      Instantly, Father contends that the trial court abused its discretion in

terminating his parental rights as the evidence showed Father made a good

faith effort to be involved in Child’s life and worked on his child permanency

plan to the extent possible while incarcerated. See Father’s Brief, at 18.

Father argues that the trial court failed to consider his criminal acts were not

part of the original reasons for Child’s removal and all of his criminal

activities preceded his knowledge of fathering Child. See id. at 17-18.

Father submits that there is no support for the trial court’s conclusion that

reunification would necessarily or probably take considerable time after

Father is released from prison. We disagree.

      The Agency caseworker, Ashley Zuver, testified from her knowledge

and familiarity with the records of the Agency. Zuver provided the trial court

with the history of the case concerning the circumstances leading to the



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placement in foster care of Child, Father’s criminal history, which dates back

to 2006, and Father’s child permanency goals. See N.T., 1/4/16, at 7-12.

Zuver informed the trial court that, while incarcerated, Father cooperated

with the Agency, completed one relevant program, and sent the Agency six

letters regarding Child. See id. at 8-12. Zuver testified that Father has not

completed an Agency-approved parenting program, drug and alcohol

evaluation or mental health evaluation, due to his incarceration. See id. at

9-12. Zuver further testified that Father has not fulfilled his goals of being

financially stable or obtaining a hazard-free home due to his incarceration.

See id. at 12. Zuver stated that Father was hoping to be released in the fall

of 2015, but the date was revoked because Father received two prison

misconducts (spiking his peers’ drinks with laxatives and smoking in his cell)

and was kicked out of a plan-related program twice. See id. at 11.

      Father provided the trial court with additional information regarding his

criminal history. Father testified that he received a two-year probation

sentence in 2010 for possession with intent to deliver. See id. at 26. Father

admitted that since sentencing in 2010, he has been in and out of prison due

to six probation/parole violations, which includes his recent arrest. See id.

at 27. Father testified that he will be released in September 2016 at the

latest, but could possibly be released as early as May 2016. See id. at 29.

Father testified that after he is released from prison, he plans to live at his

mother’s house and obtain a job from a friend at a crab shop. See id. at 32.


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      The trial court concluded the Agency met its burden to terminate

Father’s parental rights. See Trial Court Opinion, 2/10/16, at 6. The trial

court noted Father has spent most of Child’s life in prison due to six

probation/parole violations and two prison misconducts, which have all

lengthened his prison term. See id. at 6. Although Father expressed his

intent to parent and desire to work on his child permanency plan

immediately upon release, the trial court concluded Father’s actual actions

have not served to carry out his intent to parent or his intent to accomplish

his child permanency plan. See id. at 7. The trial court recognized that while

prison makes it difficult for Father to comply with his child permanency plan,

Father’s two prison infractions not only removed him from a plan related

program but also increased his prison term, thereby delaying his ability to

parent Child. See id.

      Due to the lack of evidence, the trial court was not persuaded by

Father’s argument that, if Child was born prior to the date of his most recent

drug offense, he would have not committed the crime. See id. at 7-8. The

trial court reasoned that, even after he knew of her existence, Father was

not able to impose self-discipline or good judgement to remain out of prison

and be available to Child. See id. at 8. Moreover, the trial court found that,

even if Father is released sometime in 2016, Child’s immediate need for

permanency in her life would be on hold as it will take Father several months

to complete his child permanency plan, and there is no guarantee that


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Father will actually follow through with his child permanency plan, based on

his history. See id. at 9.

      We     conclude    Father’s    arguments       regarding   subsection     (a)(2)

essentially seek for this Court to make credibility and weight determinations

different from those of the trial court. This we cannot do.

      Although Father may love Child and desire an opportunity to serve as

Child’s father, a parent’s own feelings of love and affection for a child, alone,

will not preclude termination of parental rights. See In re Z.P., 994 A.2d

1108, 1121 (Pa. Super. 2010). A child’s life “simply cannot be put on hold in

the   hope   that   [a   parent]    will    summon    the   ability   to   handle   the

responsibilities of parenting.” In Re Z.S.W., 946 A.2d 726, 732 (Pa. Super.

2008) (citations omitted). Rather, a parent’s basic constitutional right to the

custody and rearing of his child is converted, upon the failure to fulfill his

parental duties, to the child’s right to have proper parental care. See In re

Z.P., 994 A.2d at 1120.

      We find the competent evidence in the record supports termination of

Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2) in that

Father’s repeated and continued incapacity, abuse, neglect, or refusal due to

six probation/parole violations and two prison misconducts has caused Child

to be without essential parental care, control, or subsistence necessary for

her physical or mental well-being. In addition, the causes of Father’s

incapacity, neglect, or refusal cannot or will not be remedied in that there is


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no record evidence related to when Father will be able to provide essential

parental care to Child. Thus, the trial court did not abuse its discretion in

terminating Father’s parental rights under section 2511(a)(2).

      Next, despite raising a § 2511(b) claim in his concise statement,

Father failed to preserve this claim in his statement of questions involved

portion of his brief on appeal, thereby waiving this issue. See Krebs, 893

A.2d at 797. Additionally, Father has waived this issue for failure to discuss

§ 2511(b) in his brief. See Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa.

Super. 2006). See also Pa.R.A.P. 2119. We, therefore, find that Father

waived any challenge to the involuntary termination of his parental rights

under § 2511(b).

      Even if Father had preserved this issue we would find that the trial

court committed no abuse of discretion.

             [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. § 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.,
      [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).




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      Here, Zuver stated that Child was currently in a resource home with

her older Half-Sister. See N.T., 1/4/16, at 14. Zuver stated that both

children are thriving at the resource home. See id. at 15. Zuver testified

that Child has learned to crawl and is currently learning to walk at the

resource home. See id. at 14. Zuver stated that Child has a significant bond

with Half-Sister, and Child’s face lights up when she sees and hears Half-

Sister enter the room. See id. at 14-15. Zuver also testified that Half-Sister

is very protective of Child. See id. Zuver opined that it was in the best

interest of Child to terminate Father’s parental rights so that she may be

adopted and have a stable permanent home. See id. at 14. Zuver believes

that prolonging Child’s foster care and not allowing her stability and

permanency in her life would cause her more harm than termination of

Father’s parental rights. See id.

      The trial court found that Father’s assertion that Child, a fifteen-

month-old, is not affected or harmed by the absence of Father in her life,

affirms Child has absolutely no bond with him, does not miss him, and

believes herself to be a child of the resource home as she is unaware of his

existence. See Trial Court Opinion, 2/10/16 at 9-10. The trial court found

Father acted volitionally in a way to prolong his prison experience and his

time away from Child, and is without a reliable history that would lead the

court to accept his intentions to comply with his child permanency plan. See

id. at 10. The trial court determined that Father’s reentry into her life at this


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late stage would have a negative developmental, physical and emotional

effect on Child. See id. The trial court opined that Father’s letters to the

Agency and his future intentions to parent cannot be a reason to prolong

Child’s time in placement, only to be removed from her adoptive family and

her Half-Sister in order to live with a complete stranger. See id. The trial

court found Child has developed a meaningful bond with her Half-Sister and

considers her resource parents to be her parents. See id. at 11. The trial

court opined that Child is thriving at her respective home and there is no

support Father will ever be available to parent her as his parental capacity is

unknown at the time. See id. The trial court concluded that the best interest

of Child will be served by remaining with her resource parents and Half-

Sister, as she does not know Father and there is no bond between them.

See id.

      Upon review, there is no evidence of a bond of any nature between

Father and Child. It was eminently reasonable for the trial court to conclude

that no bond exists between them. Based on the foregoing testimonial

evidence and the relevant case law, we discern no abuse of discretion or

legal error by the trial court in concluding that terminating Father’s parental

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

welfare of Child.




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      Accordingly, because we conclude that the trial court did not abuse its

discretion by involuntarily terminating Father’s parental rights pursuant to §

2511(a)(2) and (b), we affirm the decree of the trial court.

      Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2016




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