J-S50016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: INVOLUNTARY TERMINATION                 :   IN THE SUPERIOR COURT OF
OF PARENTAL RIGHTS TO N.D.B., A                :        PENNSYLVANIA
MINOR                                          :
                                               :
                                               :
                                               :
                                               :
APPEAL OF: A.A.B., NATURAL                     :
FATHER                                         :   No. 37 MDA 2016


                  Appeal from the Decree December 9, 2015,
                in the Court of Common Pleas of Centre County
                      Orphans’ Court at No: 2015-4027 A

BEFORE: MUNDY, STABILE, FITZGERALD*, JJ.

MEMORANDUM BY STABILE, J.:                                  FILED JULY 11, 2016

       A.A.B. (“Father”) appeals from the decree entered December 9, 2015,

in the Court of Common Pleas of Centre County, which involuntarily

terminated his parental rights to his minor son, N.D.B. (“Child”), born in

September of 2012.1 We affirm.

       The orphans’ court summarized the factual and procedural history of

this matter as follows.

              [Centre County Children and Youth Services (“CYS”)] has
       been involved with Mother and Father for several years in
       relation to their other children. [Child] is Mother’s sixth child,
       and CYS has been involved with her since 2006. Mother’s
____________________________________________


* Former Justice specially assigned to the Superior Court.
1
  The parental rights of Child’s mother, K.S.P. (“Mother”), were involuntarily
terminated by the same decree. Mother has not filed a brief in connection
with the instant appeal, nor has she filed her own separate appeal.
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        parental rights to her first four children were involuntarily
        terminated, and her parental rights to her fifth child were
        voluntarily terminated. Mother indicated to counsel she wished
        to voluntarily terminate her rights to [Child], but failed to appear
        in court to do so at either of the two hearings for this matter.

               [Child] is Father’s third child. CYS has been involved with
        Father intermittently since 1997. Father’s first child is in the
        care and custody of the paternal grandparents, and he has not
        had significant periods of custody of his second child. Father has
        a history of substance abuse, mental health problems,
        incarceration, and financial and housing instability. From April
        22, 1994, through December 3, 2013, Father had fifteen
        separate periods of incarceration, including time for an arrest for
        driving under the influence [(“DUI”)] in 2012, and an arrest for
        driving with a suspended license in 2013. During the same
        timeframe, Father spent 753 days in prison and owes $8,439.00
        in fines and costs for eleven cases in the Centre County Office of
        Probation and Parole.

               CYS began involvement again upon learning Mother was
        pregnant with [Child]. CYS was concerned with Mother[’s] and
        Father’s mental and emotional health, home conditions, financial
        troubles, parenting skills, and their relationship problems.
        Mother and Father failed to cooperate with CYS prior to [Child’s]
        birth. . . .

Orphans’ Court Opinion, 12/9/15, at 1-2.

        CYS obtained an order for emergency protective custody of Child on

the day Child was born.            Petitioner’s Exhibit 2 (Order for Emergency

Protective Custody).       Child was adjudicated dependent on September 19,

2012.     Petitioner’s Exhibit 5 (Order of Adjudication and Disposition).      On

October 14, 2013, Child’s permanency goal was changed to adoption. 2
____________________________________________


2
  While Child’s permanency goal was changed to adoption in October of
2013, the record reveals that reunification services were ended months
earlier, on May 15, 2013. See N.T., 5/14/15, at 75-76.



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Father appealed from the goal change order, which was affirmed by a panel

of this Court on December 19, 2014. See In the Interest of: N.D.B., 116

A.3d 693 (Pa. Super. 2014) (unpublished memorandum).

      On February 13, 2015, CYS filed a petition to involuntarily terminate

Father’s parental rights to Child. A termination hearing was held on May 14,

2015, and June 26, 2015, during which the orphans’ court heard the

testimony of CYS caseworker, Rebecca McKinley-Walsh; Family Intervention

Crisis Services (“FICS”) reunification program director, Molly Funk; former

CYS caseworker, Lindsay Schreffler; CYS caseworker, Tammi Eddy; and

Father.   Following the hearing, on December 9, 2015, the orphans’ court

entered its decree terminating Father’s parental rights. Father timely filed a

notice of appeal on January 6, 2016, along with a concise statement of

errors complained of on appeal.

      Father now raises the following issues for our review.

      I. Did the [orphans’ c]ourt err in involuntarily terminating
      Father’s parental rights where CYS did not prove by clear and
      convincing evidence all of the elements required to effectuate an
      involuntary termination pursuant to 23 Pa.C.S.A. Sec.
      2511(a)(2)?

      II. Did the [orphans’ c]ourt err in involuntarily terminating
      Father’s parental rights where CYS did not prove by clear and
      convincing evidence all of the elements required to effectuate an
      involuntary termination pursuant to 23 Pa.C.S.A. Sec.
      2511(a)(5)?

      III. Did the [orphans’ c]ourt err in involuntarily terminating
      Father’s parental rights where CYS did not prove by clear and
      convincing evidence all of the elements required to effectuate an



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      involuntary termination      pursuant    to   23   Pa.C.S.A.    Sec.
      2511(a)(8)?

      IV. Did the [orphans’ c]ourt err in involuntarily Father’s parental
      rights where CYS did not prove by clear and convincing evidence
      all of the elements required to effectuate an involuntarily
      termination pursuant to 23 Pa.C.S.A. Sec. 2511(b)?

Father’s Brief at 4.

      We consider Father’s claims mindful of our well-settled standard of

review.

      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. If the factual findings are supported, appellate
      courts review to determine if the trial court made an error of law
      or abused its discretion. A decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely
      because the record would support a different result. We have
      previously emphasized our deference to trial courts that often
      have first-hand observations of the parties spanning multiple
      hearings.

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

omitted).

      Termination of parental rights is governed by Section 2511 of the

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

analysis.

      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

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     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).

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

pursuant to Sections 2511(a)(2), (5), (8), and (b). We need only agree with

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

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

2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).          Here, we

analyze the court’s decision to terminate under Sections 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

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     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 orphans’ 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 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).

     Instantly, the orphans’ court found that Father’s repeated and

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

without essential parental care, control, or subsistence necessary for his

physical or mental well-being, and that the conditions and causes of Father’s

incapacity, abuse, neglect, or refusal cannot, or will not, be remedied.

Orphans’ Court Opinion, 12/9/15, at 5-6.     The court reasoned that Father


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has a history of criminal activity, homelessness, drug and alcohol use,

deficient parenting skills, failure to cooperate with CYS, and overall

instability. Id. at 5. The court concluded that Father continues to struggle

with these same problems. Id. at 5-6.

      Father argues that he has remedied the issues which resulted in

Child’s placement in foster care. Father’s Brief at 13-20. In the alternative,

Father contends that he has made sufficient progress such that he will be

able to remedy those issues within a reasonable period of time. Id. at 19.

Father insists that he parented Child appropriately during his visits, that he

has obtained stable housing, and that he has attended counseling in order to

address his other issues. Id. at 17-19.

      After a thorough review of the record in this matter, we conclude that

the orphans’ court did not abuse its discretion by involuntarily terminating

Father’s parental rights to Child.   During the termination hearing, FICS

reunification program director, Molly Funk, testified that FICS opened its

case with respect to Father on October 11, 2012.       N.T., 5/14/15, at 49.

FICS prepared a Family Reunification Services Agreement, pursuant to which

Father was required to secure and maintain stable housing, manage his

money carefully, show that he can care for Child, and take care of himself by

cooperating with services, among other things. Id. at 51-52.

      With respect to Father’s housing, Ms. Funk testified that Father was

residing with Mother at his parents’ home at the time FICS began providing


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services. Id. at 52. Father’s parents informed FICS that Father would only

remain at their home temporarily, and FICS instructed Father that he would

need to obtain his own residence in order to demonstrate that he could live a

stable lifestyle. Id. at 52-53. Father did not obtain his own housing until

January of 2013. Id. at 53, 103. Moreover, by March of 2013, Father was

again spending extended periods of time living with his parents. Id. at 63,

103.

       Concerning visitation, Ms. Funk explained that Father attended his

visits with Child consistently. Id. at 54, 64, 78, 80. However, Father was

resistant to accepting feedback from FICS service providers with respect to

appropriate parenting techniques, such as how to prepare a bottle. Id. at

56-57, 81, 94. Father showed “minimal progress” in terms of his ability to

care for Child. Id. at 64. Father demonstrated that he was able to meet

Child’s needs, but only with prompting by FICS staff.    Id. at 66, 86, 108,

143.

       With respect to services, Ms. Funk testified that Father attended

Catholic Social Services, where it was expected that he would receive anger

management counseling. Id. at 59. During that time, Father’s counselor at

Catholic Social Services reported to FICS that Father was not willing to work

on anger management, because he did not see it as a problem. Id. at 59,

97. In March of 2013, Father indicated that he would no longer be attending

Catholic Social Services, and that he would instead be attending anger


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management and drug and alcohol counseling at Quest. Id. at 59. Father’s

only explanation for leaving Catholic Social Services was that “he began to

work on some personal issues, and he was no longer comfortable in

attending there so he was looking for counselling elsewhere.”            Id.   Father

also attended drug and alcohol services at Clear Concepts, but Father’s

counselor reported that Father did not want to work on drug and alcohol

issues, so they would work on parenting instead. Id. at 61. Ms. Funk noted

that Father was dismissive of his anger management and drug and alcohol

issues, and “stated to our agency on many occasions that everybody has

anger, and everybody uses drugs.”             Id. at 59-60, 107.       Ms. Funk also

described a conversation she had with Father during which he discussed his

prior DUI charge. Id. at 137. Father received this charge for driving after

“using marijuana and snort[ing] Vicodin[.]”          Id.    Father refused to accept

responsibility for the incident, “saying the police were lying, and he didn’t

know that driving while using marijuana was considered a DUI.” Id.

      Finally,    Ms.   Funk    testified   that   Father   appeared    to   have   an

inappropriate relationship with Mother. Id. at 68-69. During visits, Father

would instruct Mother that she was not allowed to do things without his

permission.      Id. at 82.    Father also told Mother that she was “stupid” on

multiple occasions. Id. at 56, 122. Mother reported to FICS that she was

fearful of Father, and that Father would yell and curse at her. Id. at 68-69.




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      CYS caseworker, Tammi Eddy, testified that she was assigned to this

case in September of 2013, and “officially took it over” on October 1, 2013.

N.T., 6/26/15, at 55. With respect to Father’s parental capacity, Ms. Eddy

testified that she does not believe that Father is capable of raising Child. Id.

at 97.    Ms. Eddy acknowledged that Father is able to parent Child in the

context of a two-hour supervised visit, but she expressed concern with

respect to Father’s ability to maintain Child’s safety without supervision. Id.

at 102.    Ms. Eddy confirmed that Father “presents as verbally aggressive

and hostile” and that he is resistant to accepting suggestions from service

providers.   Id. at 72-73, 94-95.     Ms. Eddy explained that Father had a

particularly poor relationship with a previous service aide. Id. at 62-63. In

April of 2014, the service aid asked to be removed from supervising and

transporting Father to visits. Id. at 70. The service aide refused to work

with Father without someone else being present, and reported that Father

was “very threatening to her.” Id. at 70-71.

      Concerning Father’s relationship with Mother, Ms. Eddy testified that

that Father and Mother married on September 11, 2013. Id. at 65. Father

and Mother separated and reunited several times, until Father filed for

divorce on March 31, 2015. Id. at 65, 70, 75-76, 88. On May 4, 2015, Ms.

Eddy received a phone call from Mother, who indicated that she left Father,

and that she filed for a Protection From Abuse (“PFA”) order against him.

Id. at 90. Mother alleged that, throughout her relationship with Father, he


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would scream at her, attack her, and state that it was his right to do so

because he owned her. Id. Mother also described an incident during which

she engaged in a “scuffle” with Father. Id. at 91. When Mother attempted

to leave the home, Father shut the door on her hand.     Id. Mother finally

was able to flee to a neighbor’s house and, for the remainder of the day,

Father “canvassed the neighborhood” trying to find her.      Id.   Ms. Eddy

explained that Father filed for a PFA against Mother on May 6, 2015. Id.

Mother’s PFA against Father was dismissed, because Mother failed to appear

at the hearing. Id. at 133. Father did appear at his PFA hearing, and an

order was entered on his behalf against Mother. Id. at 133-34.

       Accordingly, the record supports the conclusion of the orphans’ court

that Father is incapable of parenting Child, and that Father cannot, or will

not, remedy his parental incapacity. When provided with the opportunity to

participate in reunification services, Father was resistant to accepting

suggestions from service providers, and he refused to address his drug and

alcohol and anger management issues. Tellingly, Father testified during the

termination hearing that he has not attended counseling since his most

recent incarceration, and that he does not believe that counseling is

necessary.3     N.T., 6/26/15, at 175, 177, 226.    In addition, Father has


____________________________________________


3
  Our review of the record indicates that Father’s most recent incarceration
resulted from his arrest for driving with a suspended license in October of
(Footnote Continued Next Page)


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engaged in an unstable and possibly abusive relationship with Mother, which

further supports the court’s determination that Father is incapable of

parenting Child in a safe and appropriate manner.

      We next consider whether the orphans’ court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(b). We have

discussed our analysis under Section 2511(b) as follows.

      Section 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. As this Court has
      explained, Section 2511(b) does not explicitly require a bonding
      analysis and the term ‘bond’ is not defined in the Adoption Act.
      Case law, however, provides that analysis of the emotional bond,
      if any, between parent and child is a factor to be considered as
      part of our analysis. 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. Additionally, this Court
             stated that the trial court should consider the
             importance of continuity of relationships and whether
             any existing parent-child bond can be severed
             without detrimental effects on the child.




                       _______________________
(Footnote Continued)

2013.  See N.T., 6/26/15, at 63-64.                 Father was incarcerated until
December of 2013. Id.



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In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and

citations omitted).

         Here, the orphans’ court found that Child has little, if any, bond with

Father. Orphans’ Court Opinion, 12/9/15, at 9. The court noted that Child

has spent his entire life in foster care, and regards his foster parents as his

parents.      Id.   The court concluded that Father remains incapable of

parenting Child, and that it would best serve the needs and welfare of Child

to terminate Father’s parental rights. Id.

         Father argues that CYS failed to present clear and convincing evidence

that terminating his parental rights would serve the needs and welfare of

Child.     Father’s Brief at 20-21.   Father contends that he and Child are

bonded. Id. at 20. Father further emphasizes that CYS failed to obtain a

bonding evaluation, and that CYS did not provide expert testimony in

support of its position that terminating Father’s parental rights would not

have a detrimental impact on Child. Id.

         We again conclude that Father is not entitled to relief.     Ms. Eddy

testified that Child is comfortable with Father during visits, but that he is

more attached to his foster parents, and views his foster parents as his

parents. N.T., 6/26/15, at 79, 100-01. Child calls Father “daddy, but when

the door to the visit room is open, he runs to the [foster parents].” Id. at

79-80.      Thus, the record confirms that Father and Child do not share a

parent/child bond, and that Child’s parent/child bond is with his foster

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parents.   While Father is correct that CYS did not present a bonding

evaluation or other expert testimony during the termination hearing, it is

well-settled that a court in a termination proceeding “is not required by

statute or precedent to order a formal bonding evaluation be performed by

an expert.” In re K.K.R.-S., 958 A.2d 529, 534 (Pa. Super. 2008) (citation

omitted). It is clear that Child’s needs and welfare will best be served by

terminating Father’s parental rights.

      Accordingly, because we conclude that the orphans’ court did not

abuse its discretion by involuntarily terminating Father’s parental rights to

Child, we affirm the decree of the orphans’ court.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2016




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