J. S33037/19



NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF E.L., A MINOR      :     IN THE SUPERIOR COURT OF
                                      :           PENNSYLVANIA
                                      :
APPEAL OF: T.M., FATHER               :         No. 2018 MDA 2018


            Appeal from the Decree Entered December 3, 2018,
           in the Court of Common Pleas of Cumberland County
            Orphans’ Court Division at Nos. 74 Adoptions 2016,
                         CP-21-DP-0000034-2014



IN THE INTEREST OF E.L., A MINOR      :     IN THE SUPERIOR COURT OF
                                      :           PENNSYLVANIA
                                      :
APPEAL OF: T.M., FATHER               :          No. 54 MDA 2019


            Appeal from the Order Entered December 6, 2018,
           in the Court of Common Pleas of Cumberland County
             Juvenile Division at No. CP-21-DP-0000034-2014


BEFORE: LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED JULY 11, 2019

     T.M. (“Father”) appeals from the December 3, 2018 decree entered in

the Court of Common Pleas of Cumberland County, Orphans’ Court Division,

involuntarily terminating his parental rights to his dependent child, E.L.,

female child, born in May of 2008 (“Child”), pursuant to the Adoption Act,
J. S33037/19

23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), and (b).1        After careful review, we

affirm.

      The trial court set forth the following:

            Mother[2] had ceded primary physical custody of
            [Child] to Father as far back as 2012. Over the years,
            [Cumberland County Children and Youth Services (the
            “Agency”)] received several referrals regarding
            Father’s heroin use.[Footnote 2] On February 6,
            2014, the Agency became formally involved because
            of Father’s incarceration. He had left [Child] in the
            care of paternal grandmother. Unfortunately, paternal
            grandmother was unable to care for [Child] due to her
            own health issues. [C]hild was declared dependent.
            She was placed in the legal and physical custody of
            the Agency which placed her in the foster home of
            paternal grandfather. She continued to reside with
            paternal grandfather until early 2015 when she was
            transferred to the informal kinship home of her
            maternal grandparents. She stayed in that home

1 The record reflects that Father filed a timely notice of appeal of the decree
terminating his parental rights to Child at No. 74 Adoptions 2016 which this
court docketed at No. 2018 MDA 2018. Father then filed a timely notice of
appeal of the order changing the goal to adoption at CP-21-DP-0000034-2014
which this court docketed at No. 54 MDA 2019. By order entered February 2,
2019, this court consolidated the appeals sua sponte pursuant to
Pa.R.A.P. 513. (Per curiam order, 2/8/19.) In his brief to this court,
however, Father does not challenge the goal-change order.

We also note that the trial court appointed separate legal counsel to represent
Child’s legal interest, as well as a guardian ad litem to represent Child’s best
interest. See In re Adoption of L.B.M., 161 A.3d 172, 179-180 (Pa. 2017)
(plurality) (requiring the appointment of separate legal counsel, in addition to
a guardian ad litem, in contested involuntary termination proceedings); see
also In re D.L.B., 166 A.3d 322, 329 (Pa.Super. 2017) (concluding that
“separate representation would be required only if the child’s best interests
and legal interests were somehow in conflict.”)

2 The record reflects that the trial court granted the biological mother’s petition
for voluntary termination or relinquishment of parental rights to Child on
December 13, 2018.


                                       -2-
J. S33037/19


          from February 26, 2015, until March 30, 2015, when
          she was placed in Mother’s care. On May 28, 2015,
          she was taken from Mother’s care and placed back in
          the home of her maternal grandparents. She
          remained in the home of her maternal grandparents
          for nearly two (2) years until she was reunified with
          Father on February 26, 2017.

                [Footnote 2] Father conceded that he has
                been battling heroin addiction for many
                years.

          On January 8, 2018, the Agency received a referral
          that Father had left [Child] at the home of maternal
          grandparents on December 24, 2017. Father told the
          maternal grandparents that he and [C]hild were
          homeless. He was also in the throes of a relapse of his
          heroin addiction. He never did return for [C]hild.

          On February 15, 2018, we held a shelter care hearing
          for [Child]. She was again placed in the kinship home
          of her maternal grandparents. She was re-adjudicated
          dependent on March 19, 2018. Despite being given
          notice of the adjudicatory hearing, Father did not
          attend. The Agency lost contact with Father until June
          of 2018. Father reached out to the Agency through
          his counselor at an inpatient drug treatment program.
          The Agency provided the family service and
          permanency plans to Father. His counselor confirmed
          that they were received and reviewed.

          On July 2, 2018, through his counselor, Father
          requested visitation with [Child]. The Agency referred
          him to ABC.[Footnote 7] ABC attempted to arrange
          visitation but was unsuccessful due to Father’s lack of
          follow-through. On August 24, 2018, the Agency filed
          a Petition to Terminate Father’s Parental Rights. At
          that point, Father had neither seen nor contacted his
          daughter since December 24, 2017. We held an
          evidentiary hearing on November 20, 2018.

                [Footnote 7] ABC is a local provider that
                assists the Agency with a multitude of
                parenting services.


                                   -3-
J. S33037/19



Trial court opinion, 3/11/19 at 1 to 2 (footnotes containing citations to notes

of testimony omitted).

      The record reflects that following entry of the termination decree, Father

filed a timely notice of appeal, together with a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The trial court

then filed its Rule 1925(a)(2)(ii) opinion.

      Father raises the following issues for our review:

            [1.]   Does the record support the [trial] court’s
                   finding by clear and convincing evidence that
                   Father’s progress was ‘minimal’ and the
                   conditions and causes of the incapacity, abuse,
                   neglect or refusal cannot or will not be remedied
                   by the Father under [Section] 2511[(a)](2)?

            [2.]   Does the record support the [trial] court’s
                   finding by clear and convincing evidence that
                   the conditions which led to the removal or
                   placement of [C]hild continue to exist and that
                   Father cannot or will not remedy those
                   conditions within a reasonable period of time
                   under [Section] 2511[(a)](5)?

            [3.]   Does the record support the [trial] court’s
                   finding that severing the bond between Father
                   and the minor child would not have any
                   detrimental effect on [C]hild where [C]hild
                   asked to see Father, greeted him with a loving
                   embrace and where no bonding study was
                   ordered or considered?

            [4.]   Did the court error [sic] as a matter of law
                   and/or abuse its discretion in terminating
                   Father’s parental rights on the basis that Father
                   was not fully compliant with the parenting plan
                   while he was receiving in patient [sic] medical



                                      -4-
J. S33037/19


                   care for mental health and addiction disorders
                   under [Section] 2511(b)?

            [5.]   Did the court error [sic] as a matter of law
                   and/or abuse its discretion in suggesting to [the
                   Agency] that they should amend the Petition to
                   add subsection (1) to the Petition during
                   Father’s closing argument and without affording
                   an opportunity to respond or re-open evidence
                   thereby denying Father his Due Process rights?

Father’s brief at 4.

      In matters involving involuntary termination of parental rights, our

standard of review is as follows:

            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.” In re
            Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). “If
            the factual findings are supported, appellate courts
            review to determine if the trial court made an error of
            law or abused its discretion.” Id. “[A] decision may
            be reversed for an abuse of discretion only upon
            demonstration       of    manifest    unreasonableness,
            partiality, prejudice, bias, or ill-will.” Id. The trial
            court’s decision, however, should not be reversed
            merely because the record would support a different
            result. Id. at 827. We have previously emphasized
            our deference to trial courts that often have first-hand
            observations of the parties spanning multiple
            hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
            2010)].

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

855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted).        “[I]f competent



                                      -5-
J. S33037/19

evidence supports the trial court’s findings, we will affirm even if the record

could also support the opposite result.” In re Adoption of T.B.B., 835 A.2d

387, 394 (Pa.Super. 2003) (citation omitted).

      The termination of parental rights is guided by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis

of the grounds for termination followed by the needs and welfare of the child.

            Our case law has made clear that under Section 2511,
            the court must engage in a bifurcated process prior to
            terminating parental rights. 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). We have

defined clear and convincing evidence as that which 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.”

In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting

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




                                     -6-
J. S33037/19

      In this case, the trial court terminated Father’s parental rights pursuant

to Sections 2511(a)(1),3 (2), and (5), as well as (b). We have long held that,

in order to affirm a termination of parental rights, we need only agree with

the trial court as to any one subsection of Section 2511(a), as well as

Section 2511(b).     In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)

(en banc).     Here,      we   analyze   the   termination   decree   pursuant   to

Subsections 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

3 We note that in his fifth issue on appeal, Father contends that the trial court
abused its discretion when, during the termination hearing, it permitted the
Agency to amend the termination petition to include Section 2511(a)(1) as a
ground for termination. (Father’s brief at 28-30.) The record reflects that
when the Agency made the oral motion to amend, Father failed to place an
objection on the record.          (Notes of testimony, 11/30/18 at 140.)
Consequently, Father waives this claim on appeal. See Pa.R.A.P. 302 (stating
that “[i]ssues not raised in the lower court are waived and cannot be raise for
the first time on appeal”).

We further note that even if Father did not waive this issue on appeal for
failure to raise it with the trial court, we need only agree with the trial court
as to any one subsection of Section 2511(a), as well as Section 2511(b), to
affirm an order terminating parental rights. In re B.L.W., 843 A.2d at 384.
Because we determined that the trial court properly terminated Father’s
parental rights pursuant to Section 2511(a)(2), Father’s argument with
respect to Section 2511(a)(1) would be moot.


                                         -7-
J. S33037/19


                       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 first address whether the trial court abused its discretion by

terminating Father’s parental rights 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) 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



                                    -8-
J. S33037/19

grounds may include acts of refusal as well as incapacity to perform parental

duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015),

quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002).             “Parents are

required to make diligent efforts towards the reasonably prompt assumption

of full parental responsibilities. . . . [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.” In re A.L.D., 797

A.2d at 340 (internal quotation marks and citations omitted).

        Here, in terminating Father’s parental rights, the trial court emphasized

that:

              [t]he main basis for the termination of Father’s
              parental rights was his lengthy history of heroin
              addiction. The record shows that his duties to [Child]
              took a back seat to his drug use. His drug use
              prevented reunification during [Child’s] current and
              previous time in placement. It caused Father and
              [Child] to become homeless in December, 2018. It
              caused Father to leave [Child] in the care of others.
              His drug use, historically, has caused instability and
              unrest for the majority of [C]hild’s life. His demons
              have delayed her permanency. And, sadly, at the time
              of the termination hearing, he still had not
              demonstrated any real progress on addressing his
              drug addiction outside of a controlled environment.
              Not only had he failed to follow through on outpatient
              counseling, he was slow to begin the drug testing
              program requested by the Agency. Once he began, he
              missed numerous drug tests and call-ins within the
              first 15 days.

              Furthermore, he failed to keep in contact with [Child].
              He had not had any contact or communication with
              her for almost a year. While he had made an attempt
              to contact the Agency to set up visits, he did not follow


                                        -9-
J. S33037/19


            through. His participation in an inpatient drug
            treatment program may partially explain his failure to
            follow through with visitation, but it does not provide
            an excuse for his total lack of communication with his
            child.

            [Child] was without essential parental care for almost
            four-and-one-half years at the time of the hearing.
            Father’s addiction is the source of his repeated and
            continued parental incapacity, and his current
            situation was a foreseeable consequence of his
            inability to lead a life free from illegal drugs. He has
            been in and out of [Child’s] life during his times of
            incarceration, rehab and homelessness, all stemming
            from his drug addiction. He may be attempting to
            battle his addiction at the moment but he still has a
            long way to go in his recovery. His inability to follow
            through with his drug testing (and outpatient
            counseling) demonstrates this problem. Thus, we
            found that Father’s drug-related issues continued to
            impact [Chlid] and precluded him from providing
            essential parental care, control or subsistence
            necessary for her physical and mental well-being.

            Whether Father’s failure to provide parental care is the
            result of true incapacity or is simply his refusal,
            differentiating is not important; the result is the
            same—[Child] is without essential parental care.
            Taking into consideration the already lengthy history
            here, this problem was not likely to be remedied in
            time to align with the needs and welfare of [Child].
            She needs and deserves stability and permanency,
            which Father was unable or unwilling to provide at the
            time of the hearing. A child’s permanency cannot be
            put off indefinitely in the hope that a parent might one
            day be able to carry out his duties.

Trial court opinion, 3/11/19 at 5-7 (citation omitted).

      Here, in his brief to this court, Father rehashes the termination hearing

testimony in an attempt to persuade this court to reach a different result. We

are, however, required to accept the trial court’s findings of fact and credibility


                                      - 10 -
J. S33037/19

determinations when supported by the record. In re T.S.M., 71 A.3d at 267.

Here, our review of the record compels the conclusion that it supports the trial

court’s factual findings and that the trial court did not abuse its discretion in

terminating Father’s parental rights under Section 2511(a)(2).        The record

demonstrates that the conditions that existed upon removal establish

repeated and continued incapacity, abuse, neglect, or refusal of Father that

caused Child to be without essential parental care, control, or subsistence

necessary for his physical or mental well-being. The record also supports the

trial court’s conclusion that Father continued to lack capacity to parent Child.

      We now turn to whether termination was proper under Section 2511(b).

As to that section, our supreme court has stated as follows:

            [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., 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.       However, as discussed below,
            evaluation of a child’s bonds is not always an easy
            task.

In re T.S.M., 71 A.3d at 267. “In cases where there is no evidence of any

bond between the parent and child, it is reasonable to infer that no bond



                                     - 11 -
J. S33037/19

exists. The extent of any bond analysis, therefore, necessarily depends on

the circumstances of the particular case.”       In re K.Z.S., 946 A.2d 753,

762-763 (Pa.Super. 2008) (citation omitted).

        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 at 1121 (internal citations omitted).

        Moreover,

             While a parent’s emotional bond with his or her child
             is a major aspect of the subsection 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. . . .

In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M., 33 A.3d

95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).

        Our supreme court has stated that, “[c]ommon 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.”

T.S.M., 71 A.3d at 268.       The court directed that, in weighing the bond

considerations pursuant to Section 2511(b), “courts must keep the ticking

clock of childhood ever in mind.” Id. at 269. The T.S.M. court observed,


                                      - 12 -
J. S33037/19

“[c]hildren are young for a scant number of years, and we have an obligation

to see to their healthy development quickly. When courts fail, the result, all

too often, is catastrophically maladjusted children.” Id.

      In determining that termination of Father’s parental rights favored

Child’s needs and welfare, the trial court:

            found little to no evidence that severing the ties
            between Father and [Child] would have any
            detrimental effect on [C]hild. She even expressed
            concern to her therapist about possibly returning to
            his care. Prior to her testimony in chambers, she had
            consistently told her therapist that she did not want
            to live or visit with her Father. Furthermore, we were
            satisfied that if there would be any adverse effect, it
            could be easily overcome by the love and support of
            [Child’s] maternal grandparents. She is thriving in the
            foster home of her maternal grandparents. They love
            her and want to adopt her.[Footnote 13] Her life with
            Father had been hard and unpredictable. With her
            maternal grandparents, she has love, stability, and
            permanency. Consequently, we were satisfied that
            the needs and welfare of [Child] would be best served
            by terminating Father’s parental rights and allowing
            her to be adopted.

                  [Footnote 13] Both maternal and paternal
                  grandparents want to adopt [Child].
                  Mother consented to the termination of
                  her rights with her parents being her
                  preference for the adoption. [Child] also
                  prefers her maternal grandparents as
                  evidenced by her choice to not honor her
                  paternal    grandparents’   request   for
                  visitation and to not request any such
                  visitation herself.

Trial court opinion, 3/11/19 at 7 (footnotes containing citations to notes of

testimony omitted).



                                     - 13 -
J. S33037/19

      In his brief, Father rehashes select portions of the record in an effort to

persuade this court to reach a different result. The record, however, supports

the trial court’s factual findings, and its legal conclusion that termination of

Father’s parental rights is in Child’s best interest was not the result of an error

of law or an abuse of discretion.

      Based upon our thorough review of the record, we find no abuse of

discretion and conclude that the trial court appropriately terminated Father’s

parental rights under Sections 2511(a)(2) and (b).

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/11/2019




                                      - 14 -
