J-S42028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: S.A.M., A MINOR                   :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
 APPEAL OF: R.M., JR., FATHER             :
                                          :
                                          :
                                          :
                                          :
                                          :    No. 338 MDA 2018

              Appeal from the Order Entered January 17, 2018
  In the Court of Common Pleas of Centre County Orphans' Court at No(s):
                                   4223


BEFORE:     BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED AUGUST 24, 2018

      R.M., Jr. (“Father”) appeals from the order terminating his parental

rights to S.A.M. (“S.A.M.” or “Child”). We conclude the trial court did not abuse

its discretion in terminating Father’s rights and, therefore, affirm.

      Child was born in March 2016 and was removed from the care of Father

and L.M. (“Mother”) shortly after birth. On March 4, 2017, Centre County

Children and Youth Services (“CYS” or “Agency”) filed a Petition to Terminate

Parental Rights. The trial court held a hearing.

      The trial court set forth the following factual history:

             CYS first became involved in this matter on learning of
          Mother’s pregnancy with S.A.M. in September of 2015. At
          that time, there was an ongoing dependency proceeding
          with respect to another child of Parents that began in 2010
          when Mother was pregnant with the couple’s first child, R.M.

             A summary of the Agency’s involvement in the R.M. case
          is necessary to a full understanding of the present matter.
          Before R.M.’s birth, CYS sought to engage Mother and

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       Father in preventative services due to concerns stemming
       from Father’s status as a convicted sex offender and a
       sexually violent predator (“SVP”). Father’s SVP status was
       determined by Judge Thomas Kistler on October 17, 2005 in
       connection with convictions for sexual assault, aggravated
       indecent assault, two counts of indecent assault, and two
       counts of corruption of minors. Testimony at the September
       5, 2017 hearing recounted that, although Mother and Father
       participated in in-home Parenting Plus services for a brief
       period during Mother’s pregnancy, they subsequently
       discontinued the services and refused further preventive
       services offered by the Agency. R.M. was born in July of
       2010 and taken into emergency custody by CYS. A
       dependency petition and adjudication followed, and R.M.
       was adjudicated a dependent child and placed in the care
       and custody of the agency. Agency concerns revolved
       around potential risks posed by Father’s SVP status and
       related issues, Mother’s physical and cognitive limitations,
       Mother’s failure to appreciate or acknowledge the potential
       risks posed to the child due to Father’s SVP status, and an
       inability of Mother to care for and protect the child, even
       with assistance and support from Mother’s family due to
       their inability to stand up to Father.

          Mother and Father were provided reunification services
       with respect to R.M. through Family Intervention Crisis
       Services (“FICS”).3 Those services included development of
       service agreement goals, parent education sessions,
       individual and family sessions, with both parents and with
       each parent separately, and supervised visits with R.M.
          3 Father was subject to an aggravated circumstances
          order, and, thus, reunification services were not
          ordered; however, because Father was living in the
          home with Mother, the agency incorporated Father
          into the services.

                                   ...

          As to Father, there were significant concerns regarding
       Father’s mental health and stability. A major issue was
       Father’s SVP status and his failure to continue with legally
       mandated counseling and treatment associated with that
       designation. Father also failed to manage his treatment
       needs for a seizure disorder. In addition, he was


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       argumentative with service providers, and refused to take
       prescription medications for treatment of his anger and
       mood disorder.

          Reunification services with respect to R.M. continued for
       approximately nine to twelve months as the Agency and its
       service providers attempted to work with Mother and Father
       to try to surmount the identified safety issues. Mother and
       Father failed to make significant progress, however, and
       reunification services were ultimately deemed unsuccessful
       and a petition for involuntary termination of parental rights
       as to R.M. was filed. Mother and Father subsequently agreed
       to voluntarily relinquish their parental rights to R.M., and
       R.M. was adopted by her foster placement family.

          In September of 2015, CYS learned that Mother was
       pregnant with a second child, (S.A.M.), and the Agency
       became involved with Mother and Father again at that time
       to address the previously unresolved parenting issues.
       There were no immediately available services as of that
       time. Ongoing assessment by the Agency demonstrated that
       very little had changed since the Agency’s past involvement
       with Mother and Father. Parenting deficits were still present,
       and Mother continued in her failure to recognize the
       potential danger presented by Father. In addition, Mother is
       meek and passive, and the Agency observed that she is
       often controlled by people in her life, particularly Father.
       There were no other adults who could provide the care and
       supervision necessary to ensure the child’s safety and well-
       being due to Parents’ limitations and the safety risk posed
       by Father. Although Parents lived with Mother’s parents
       (Maternal Grandparents) at that time, CYS’ observation
       during prior experience with the family was that Maternal
       Grandparents, like Mother, would not stand up to Father.

          Mother gave birth to S.A.M. on March 4, 2016. On that
       same date, CYS filed an emergency petition, and emergency
       custody was transferred to the Agency. S.A.M. was
       discharged from the hospital on March 6, 2016 to a kinship
       foster home placement, in the same home as her biological
       sister, R.M.4 A dependency petition was filed, and an
       adjudicatory hearing was held on March 16, 2016. Evidence
       demonstrated that Mother and Father’s circumstances had
       not materially changed since the Agency’s involvement with
       the first child. S.A.M. was adjudicated dependent following

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          the March 16, 2016 hearing, and her placement goal was
          identified as adoption. An aggravated circumstances Order
          was entered on that same date against Father based on
          clear and convincing evidence of Father’s criminal history of
          convictions for sexual offenses against minors, his status as
          a sexually violent predator, and his related registration and
          reporting requirements. The aggravated circumstances
          Order provided that reunification services would not be
          provided as to Father.
              4Subsequently, a third child was born to Mother and
              Father, H.M., who also was placed in the same foster
              home after a dependency adjudication.

             Following the dependency adjudication, regular visitation
          was offered to both Mother and Father, and it was observed
          that both struggled with basic child care tasks such as
          changing diapers, and Mother continued to struggle with
          recognizing cues and preparing bottles and changing
          clothes. . . .

             Father’s circumstances continue to pose significant
          safety risks for the Minor Child. During the time S.A.M. has
          been in placement, Father has refused to cooperate with
          CYS and to provide requested information regarding his SVP
          offender treatment or his mental and/or physical health. The
          only information available to the Agency indicated that
          Father had not been consistently enrolled in counseling, and
          that he is still designated as at high risk for re-offending.
          Father also suffers from a seizure disorder, fainting, and
          medical ailments that are not well controlled and that impact
          his ability to safely hold and care for an infant or young
          child. Father struggles with mood regulation, and CYS
          observed him to have mood swings and to be volatile and
          threatening toward workers on occasion. At the time of the
          TPR hearing, Father was in jail awaiting trial on charges that
          he failed to comply with the registration requirements
          attendant to his SVP status.[1]

             The ongoing nature of the concerns regarding Father’s
          SVP status and failure to consistently participate in
          treatment, as well as his overall mental and physical health,
____________________________________________


1 The Huntington County Court of Common Pleas dismissed the failure to
register charges on January 8, 2018. Docket, CP-31-CR-0313-2017.

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        make unsupervised time between Father and S.A.M. an
        unrealistic possibility due to serious safety concerns for the
        child. In addition, during supervised visits offered through
        the Agency, Father has not been able to demonstrate an
        ability to meet S.A.M.’s needs.

           In addition to the above, Mother and Father do not have
        stable housing. At the time the TPR Petition was filed, they
        were still living with Mother’s parents. Since that time,
        however, they left that residence and were homeless for a
        time, staying in a homeless shelter in another county. As
        noted above, Father was cited and arrested on allegations
        of failing to comply with his SVP registration requirements
        by failing to register the new address at the homeless
        shelter. He has been incarcerated in Huntingdon County on
        those charges since early June of 2017. Mother testified that
        she once again lives in her parents’ home, but the Agency
        was not able to verify that at the time of the hearing.

                                      ...

           S.A.M. is thriving in her foster home and interacts with
        her foster parents as if she were their child. She is physically
        and developmentally on track. She interacts in play with her
        older biological sibling in the home, as well as with two
        foster siblings. At the age of 18 months old, S.A.M. was
        saying a few words. She referred to her foster parents as
        mom and dad. S.A.M.’s foster parents have facilitated
        supervised visits with Mother and Father. During the visits,
        when S.A.M. was distressed or needed comfort, she went to
        her foster mother for support instead of Mother. S.A.M.'s
        foster parents have provided for her physical and emotional
        needs since her discharge from the hospital just after her
        birth. [Casie] Rockey[, a CYS case supervisor,] testified that
        termination of Parents’ parental rights would give S.A.M. the
        opportunity to be adopted by her foster family, who has
        cared for her since birth. This would provide permanency
        and would allow her to be raised in the home of a full
        biological sibling.

Trial Court Opinion, filed Jan. 17, 2018, at 2-8 (internal citations and some

footnotes omitted).




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      The trial court found grounds for termination existed under 23 Pa.C.S.A.

§ 2511(a)(2), (5), (8), and (11), and found termination proper under Section

2511(b). Father filed a timely Notice of Appeal.

      Father raises the following issues on appeal:

         1) Did the Trial Court commit an error of law in applying 23
         Pa.C.S.A. 2511(a)(11) and terminating Father's parental
         rights pursuant to that statute, as it was not yet enacted
         when S.A.M. was conceived?

         2) Did the Trial Court incorrectly find clear and convincing
         evidence existed to terminate Father’s parental rights
         pursuant to 23 Pa.C.S.A. 2511(a) (2), (5), and (8) where no
         assessment[] was conducted, but instead the Agency
         merely relied on the lack of progress Father made in a prior
         case years before?

         3) Did the Trial Court incorrectly determine that sufficient
         evidence was presented to terminate Father’s parental
         rights?

Father’s Br. at 2.

      When reviewing orders terminating parental rights, we must “accept the

findings of fact and credibility determinations of the trial court if they are

supported by the record.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa.

2012). Where “the factual findings are supported,” we review the decision “to

determine if the trial court made an error of law or abused its discretion.” Id.

We will reverse a decision “for an abuse of discretion only upon demonstration

of manifest unreasonableness, partiality, prejudice, bias, or ill-will.” Id.

      The Pennsylvania Supreme Court has explained the reason for applying

an abuse of discretion standard to termination decisions:




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          [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.

Id. at 826-27 (citations omitted).

       A trial court may terminate parental rights only after finding grounds for

termination existed under Section 2511(a) and that termination is in the

child’s best interest under Section 2511(b). Although the trial court terminated

Father’s parental rights pursuant to several subsections of 2511(a), we need

only conclude that its decision was proper under any one subsection of Section

2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Here,

we conclude that the trial court properly terminated Father’s parental rights

pursuant to Sections 2511(a)(2).2

       Section 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 Because we conclude the trial court properly found grounds for termination
under Section 2511(a)(2), we will not reach Father’s first issue, challenging
the termination under Section 2511(a)(11).

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              (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.A. § 2511(a)(2).

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

party must produce clear and convincing evidence of the following: “(1)

repeated and continued incapacity, abuse, neglect or refusal; (2) 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).

       Father claims that the finding that termination was proper under Section

2511(a) was based on information from Father’s involvement with CYS with a

prior child and that CYS failed to present evidence that he has current inability

to parent Child. We disagree.

       Here, the trial court found aggravated circumstances as to Father based

on his convictions. Aggravated Circumstances Order, filed March 17, 2016;

see 42 Pa.C.S.A. § 6302 (defining aggravated circumstances).3 The trial court

____________________________________________


3 Father did not appeal the order finding Child dependent or the trial court’s
finding that aggravated circumstances existed, and does not challenge the
aggravated circumstances order in this appeal. See In re R.C. 945 A.2d 182,



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further found that CYS need not engage in reasonable efforts to reunify Father

and Child. See Aggravated Circumstances Order.

       The trial court noted that the “record is replete with testimony that most

all of the concerning circumstances and conditions existing when services were

provided for R.M. continued to exist on the birth of S.A.M. and thereafter.”

TCO at 13. The trial court reasoned that termination was proper, in part,

because Father refused to cooperate with CYS by not providing information

regarding his psychological and medical treatment, “despite many concerns

about his mental and physical conditions and how those conditions impact his

ability to parent.” Id at 12. The trial court further noted that Father failed to

show “progress with respect to the limitations on his ability to meet the basic

needs of an infant or young child despite the services provided to him during

supervised visits.” Id. at 12-13.

       The trial court’s factual findings are supported by the record, and the

findings support the trial court’s conclusion that Father had a continued

incapacity that caused Child to be without parental care, control or

subsistence, and that the cause of the incapacity could not be remedied. The




____________________________________________


184 (Pa.Super. 2008) (aggravated circumstances order may be appealed as
collateral order); In re Estate of Petro, 694 A.2d 627, 631 (Pa.Super. 1997)
(“We can find no rule of law, either statutory or common law, which states
that a collateral order must be appealed within 30 days of its entrance or an
appeal based upon the substance of the collateral order is forever precluded.”
(emphasis in original)).

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trial court did not abuse its discretion in finding grounds for termination of

parental rights existed under Section 2511(a)(2).

      We next address the trial court’s conclusion that termination would best

serve Child’s developmental, physical and emotional needs and welfare under

Section 2511(b). Section 2511(b) provides:

         (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(b).

      The focus under Section 2511(b) is not on the parent, but on the child.

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

Pursuant to Section 2511(b), the trial court must determine “whether

termination of parental rights would best serve the developmental, physical

and emotional needs and welfare of the child.” In re C.M.S., 884 A.2d 1284,

1286 (Pa.Super. 2005). This Court has explained that “[i]ntangibles such as

love, comfort, security, and stability are involved in the inquiry into [the]

needs and welfare of the child.” Id. at 1287. 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.

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      The trial court found termination would be in Child’s best interest. It

reasoned that Child is thriving in her foster placement, is physically and

developmentally on track, and the foster parents are meeting her physical,

emotional, and medical needs. TCO at 15. The trial court further noted that

Child lives with her biological sister, R.M., and has two foster siblings. The

court stated there was no evidence of a bond between Child and Father. It

concluded that termination would not “destroy an existing relationship

necessary and beneficial for child” and that Child’s “needs and welfare are best

fulfilled by terminating both Mother and Father’s parental rights.” Id. at 15-

16.

      The record supports these factual findings and the trial court did not

abuse its discretion in finding termination would best meet Child’s

developmental, physical and emotional needs and welfare. Further, contrary

to Father’s assertion, the trial court did not need a bonding evaluation where

it found no evidence of a bond and where the record supported its findings.

See In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super. 2008) (“In cases where

there is no evidence of any bond between the parent and child, it is reasonable

to infer that no bond exists.”).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/24/2018




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