J-S78044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF C.T.C. AND K.C.C.              IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: C.D.C., II
                                                       No. 898 WDA 2016


                       Appeal from the Order May 16, 2016
       in the Court of Common Pleas of Allegheny County Orphans’ Court
                             at No(s): No. A-15-110

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 14, 2016

        C.D.C., II (“Father”) appeals from the order entered in the Allegheny

County Court of Common Pleas granting the petition filed by his former

girlfriend, J.A. (“Mother”), seeking termination of his parental rights to their

sons, C.T.C. (born in July of 2005), and K.C.C. (born in February of 2008)

(collectively, “Children”), pursuant to the Adoption Act, 23 Pa.C.S. §

2511(a)(1), (2), and (b), so that Mother’s husband, R.M.A. (“Stepfather”),

may adopt the children. We affirm.

        On October     26, 2015, Mother      filed a   petition for   involuntary

termination of Father’s parental rights to Children, and Stepfather filed a

petition for adoption seeking to adopt Children. On January 29, 2016, the

trial court appointed Colleen A. Jeffry, Esq., as counsel for Father, who had

recently been released from prison, and Margaret Gold, Esq., as Children’s

Guardian Ad Litem (“GAL”). Attorney Gold filed a GAL report on March 28,

*
    Former Justice specially assigned to the Superior Court.
J-S78044-16


2016, in which she summarized her interviews with all interested parties and

recommended the termination of Father’s paternal rights.

      On May 16, 2016, the trial court held an evidentiary hearing on the

termination petition.   Mother and Stepfather testified and were present in

the courtroom, while Father and his sister, J.S. (“Paternal Aunt”), testified

via video conferencing. The trial court summarized the testimony as follows:

            Mother testified that at the time of [C.T.C.’s] birth [in
         July of 2005], she and Father had been involved in a
         relationship for approximately two years. They began
         residing together in Milwaukee, WI[,] after [C.T.C.’s] birth.
         Both parents were involved in the child’s care. [K.C.C.]
         was born [in February of 2008]. Father moved from their
         shared residence a few months later. Mother believed that
         Father was abusing prescription narcotics. Initially, the
         parties had an equally shared custody arrangement. (N.T.
         05/16/16, pp. 4-8).

            In late 2010, Mother filed the original custody action in
         Milwaukee County, WI[,] due to Father’s increasing drug
         abuse. The parties were ordered to go to mediation[,] and
         a GAL was appointed for [C]hildren. In April, 2011, the
         parties reached an agreement providing for custodial time
         for both parties. In August, 2012, Mother reinstituted the
         custody action due to Father’s lack of stability and recent
         criminal involvement.     Mother was awarded “primary
         placement and sole custody”, subject to Father’s
         placement as agreed. Over the next several months,
         Orders of Court were issued steadily decreasing Father’s
         custodial time, with an Order dated May 30, 2013
         providing for Mother to have sole custody and primary
         placement[,] and Father’s placement was “held open until
         such time he can establish no substance abuse issues”.
         Father had no contact with [C]hildren after the issuance of
         the May 30, 2013 Order. (N.T. 05/16/16, pp. 10-15;
         Exhibit 1).

           Mother stated that she married Stepfather [in July of
         2014,] and moved to Pittsburgh shortly thereafter due to


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         Stepfather’s employment.      Mother filed a Change of
         Address form with the United Stated Postal Service.
         (Exhibit 2)   Father attempted to contact Mother via
         Facebook in mid[-]2014. Also, Father sent Mother an
         email on July 2, 2014 and July 11, 2014. Mother did not
         reply to Father’s Facebook message or the first email;
         however, she replied to the second email and told Father
         he could not have contact with [C]hildren due to the May
         30, 2013 Order and his involvement in criminal activity.
         (N.T. 05/16/16, pp. 20 -27; Exhibits 2 and 3).

            Mother stated that Stepfather and [C]hildren have a
         wonderful, loving relationship. [C]hildren call Stepfather
         “Dad” and[,] as she is not employed outside the home,
         Stepfather is the sole financial support for the family.
         Father has not supported [C]hildren for several years, nor
         has he sent them birthday or Christmas cards or presents.
         (N.T. 05/16/16, pp. 30-36).

            Stepfather testified that he loves [C]hildren very much,
         they have a great relationship, and he considers the
         children his sons. (N.T. 05/16/16, pp. 44-48).

            Father testified that he currently lives with his sister in
         Milwaukee, WI. He was released from jail on March 8,
         2016, after spending most of the previous three years
         incarcerated. He claims that he never received a copy of
         the May 30, 2013 Order[,] and he found out that Mother
         and [C]hildren were living in Pittsburgh when he received
         the Petition in January 2016. He admitted that he knew
         that Mother had resided with her [m]other in a suburb of
         Milwaukee and he knew her mother's address; however,
         he did not attempt to contact Mother through her mother.
         (N.T. 05/16/16, pp. 48-53, 65, 76-78).

Trial Ct. Op., 6/27/16, at 2-4.

      On May 16, 2016, the trial court entered the order terminating

Father’s parental rights pursuant to 23 Pa.C.S. §2511(a)(1), (2), and (b).

On June 15, 2016, Father filed a timely notice of appeal, along with a




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concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).

      On appeal, Father raises three issues:

         I. Did the [trial] court abuse its discretion and commit an
         error of law when it held that the statutory grounds for
         involuntary termination of Father’s parental rights to
         Children under 23 Pa.C.S.A. § 2511(a)(1) were met,
         thereby determining that Father, by conduct continuing for
         a period of at least six (6) months immediately preceding
         the filing of the petition either had evidenced a settled
         purpose of relinquishing parental claim to a child or had
         refused or failed to perform parental duties?


         II. Did the [trial] court abuse its discretion and commit an
         error of law when it determined that the statutory grounds
         for involuntary termination of Father’s parental rights
         under 23 Pa.C.S.A. § 2511(a)(2) were met and that the
         repeated and continued incapacity, abuse, neglect or
         refusal of Father has caused Children to be without
         essential parental care, control or subsistence necessary
         for their physical or mental well-being and the conditions
         and that Father could or would not remedy the causes of
         the incapacity, abuse, neglect or refusal?

         III. Did the [trial] court abuse its discretion when it
         determined that terminating Father’s parental rights best
         served the developmental, physical and emotional needs
         and welfare of Children?

Father’s Brief at 3-4.1

      In reviewing an appeal from an order terminating parental rights, we

adhere to the following standard:




1
  We note that Father stated his issues somewhat differently in his concise
statement, but we find them preserved for this Court’s review.



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            [A]ppellate courts must apply an abuse of discretion
        standard when considering a trial court’s determination of
        a petition for termination of parental rights.           As in
        dependency cases, our standard of review requires an
        appellate court to accept the findings of fact and credibility
        determinations of the trial court if they are supported by
        the record. In re R.J.T., [ ] 9 A.3d 1179, 1190 (Pa.
        2010). 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.; R.I.S., 36 A.3d 567,
        572 (Pa. 2011) (plurality opinion)]. As has been often
        stated, an abuse of discretion does not result merely
        because the reviewing court might have reached a
        different conclusion. Id.; see also Samuel Bassett v.
        Kia Motors America, Inc., [ ] 34 A.3d 1, 51 (Pa. 2011);
        Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003).
        Instead, a decision may be reversed for an abuse of
        discretion    only   upon    demonstration     of     manifest
        unreasonableness, partiality, prejudice, bias, or ill-will. Id.

            As we discussed in R.J.T., there are clear reasons for
        applying an abuse of discretion standard of review in these
        cases. We observed that, unlike 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. R.J.T., 9 A.3d at 1190. 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. In re Adoption of
        Atencio, 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).




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      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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

              Moreover, we have explained:

           [t]he standard of clear and convincing evidence is defined
           as testimony that is so “clear, direct, weighty and
           convincing as to enable the trier of fact to come to a clear
           conviction, without hesitance, of the truth of the precise
           facts in issue.”

Id. (citation omitted).

      This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of Section

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

banc). In the case sub judice, the trial court terminated Father’s parental

rights under Section 2511(a)(1), (2), and (b), which provides as follows:

           § 2511. Grounds for involuntary termination

           (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:

              (1) The parent by conduct continuing for a period of at
              least six months immediately preceding the filing of the
              petition either has evidenced a settled purpose of
              relinquishing parental claim to a child or has refused or
              failed to perform parental duties.

              (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,




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              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. § 2511(a)(1)-(2), (b).

      With respect to subsection 2511(a)(1), our Supreme Court has held as

follows:

           Once the evidence establishes a failure to perform parental
           duties or a settled purpose of relinquishing parental rights,
           the court must engage in three lines of inquiry: (1) the
           parent’s explanation for his or her conduct; (2) the post-
           abandonment contact between parent and child; and (3)
           consideration of the effect of termination of parental rights
           on the child pursuant to Section 2511(b).

In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).

      Further, this Court has stated:

           the trial court must consider the whole history of a given
           case and not mechanically apply the six-month statutory
           provision. The court must examine the individual
           circumstances of each case and consider all explanations
           offered by the parent facing termination of his or her
           parental rights, to determine if the evidence, in light of the
           totality of the circumstances, clearly warrants the
           involuntary termination.


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In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).

     Father alleges the facts of this case are as follows:

           Shortly following [K.C.C.’s] birth, Father and Mother
        separated. Mother initially remained in the home with
        [C]hildren and Father moved out.            At some point
        thereafter, Mother and Children moved back in with her
        mother in Greenfield, Wisconsin. During the time that
        Father and Mother resided together, Mother admits that
        Father parented [C]hildren as a father should. He played
        sports and video games with them and took them to the
        zoo[.] Even after Mother and Father separated, they
        continued to co-parent, splitting their time with [C]hildren
        50/50.

           Shortly after Mother and Father separated, Father’s
        mother died. A mere six months later his father died. As
        a result of this unfortunate series of events, Father
        spiraled into a deep depression. Father was prescribed
        medication for panic attacks and anxiety and has been on
        pain medication for many years due to an amputated toe
        and back pain.

           In 2011, Mother filed for custody of Children. Father
        was granted visitation which he exercised until May 2013
        at which time his visitation was suspended.

           In June of 2012, charges were filed against Father for
        stealing a bicycle and attempting to sell it. Father was
        charged with multiple other petty theft offenses over the
        next year.     Father was arrested in 2013 and was
        incarcerated until April 2014.

           In April 2014, Father was released to drug court and
        began a drug treatment program. Due to compliance
        issues, Father did not complete the program and in
        November 2014 the [c]ourt revoked his deferred
        prosecution agreement.      Father maintains that his
        noncompliance was not drug related.

           Before and during the time that Father was participating
        in the drug treatment program, he sent Mother text


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       messages and emails inquiring about [ ] Children and
       when he could see them. Specifically, Father sent fifteen
       to twenty text messages to Mother between March 2013
       and July 2014 and sent her at least two emails, as well as
       a Facebook message. Mother responded to one of the
       emails, sent in July 2014, informing Father that his
       visitation was suspended in May 2013.

          Soon thereafter, as a result of the revocation of the
       deferred prosecution agreement, Father was sentenced to
       serve prison time for the offenses for which prosecution
       was suspended pending completion of the drug treatment
       program. Father was incarcerated from late 2014 until
       March 8, 2016, at which time he was released.

          [In July of 2014], Mother and Stepfather married[.]
       Shortly thereafter, Mother, Stepfather, and Children
       moved from Wisconsin to their current home in Pittsburgh
       due to Stepfather’s employment.          While Mother and
       Stepfather moved to Pittsburgh, Father remained
       incarcerated in Wisconsin. Mother testified that she did
       not notify the Wisconsin court that she was moving, nor
       did she file a change of address with the court. Further,
       Mother testified that she did not notify Father that she was
       moving and did not provide Father or Father’s sister with a
       new address.

          Father told the GAL that during his incarceration he
       called Mother multiple times and she would not accept his
       calls. Father also told the GAL that he did not have access
       to email, and was blocked by Mother on Facebook.
       Further, consistent with Mother’s admitted lack of
       notification, Father testified that he was unaware until
       January 2016 that Mother had moved to another state and
       that he did not have Mother’s Pittsburgh address.

          Father’s only means of contact while in prison was
       standard mail. Father enlisted the help of his sister who
       sent birthday and holiday cards to Mother’s Wisconsin
       address, at which they both believed Mother to live, on
       behalf of Father. Father is now out of prison and though
       he is on probation for two years, he stated to the GAL that
       he would consider moving to Pittsburgh to be close to his
       sons.


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            As previously stated, Father testified that he was
         unaware until July 2014 that his visitation rights were
         suspended. Upon his release in 2016, Father took action
         and filed motions with the court in Wisconsin to reopen
         visitation. Father also filed a modification of the custody
         order on March 28, 2016.

Father’s Brief at 5-8 (footnote and record citations omitted).

      Father asserts that the evidence demonstrates that he had a loving

parental relationship with Children prior to his incarcerations in 2013 and

2014. Id. at 8. With regard to Section 2511(a)(1), Father alleges that he

neither evidenced a settled purpose to relinquish parental claim nor failed or

refused to perform parental duties during the six-month period immediately

preceding Mother’s filing of the initial petition to involuntarily terminate

parental rights.   Id. at 8.   Father contends that, during the six months

immediately preceding the filing of the initial petition to involuntarily

terminate his parental rights in October of 2015, he was incarcerated, and,

thus, unable to visit with or provide financial support for Children. Id. at 8,

10-11.   Father cites In re Adoption of S.P. and In re Adoption of

McCray, 331 A.2d 652, 655 (Pa. 1975), in support of his contention that

incarceration alone is not a sufficient basis to terminate parental rights.

Father’s Brief at 10.

      Father also cites In re R.I.S., 36 A.3d 567, 571 (Pa. 2011), for the

proposition that a parent’s absence or failure to support his child due to

incarceration is not, in itself, conclusively determinative of the issue of



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parental abandonment for the purpose of terminating parental rights.

Father’s Brief at 10-11.   Father urges that he did as much as he possibly

could have done to maintain a place of importance in Children’s lives during

his incarceration from late 2014 to March of 2016. Id. Specifically, Father

claims that he called, sent emails, and sent text messages to Mother

inquiring about Children’s well-being, and asking when he could see them.

Id. at 11-12. Father states that he sent fifteen to twenty text messages to

Mother between March of 2013 and July of 2014, at least two emails, and a

Facebook message. Id. at 12. Father claims that, until Mother sent him a

responsive email in July of 2014, she failed to timely notify him of the

suspension of his visitation in May of 2013. Id. Father claims that, shortly

thereafter, he was incarcerated, and his ability to act regarding the

suspension of his visitation was seriously curtailed. Id. Father states that,

although he exercised reasonable firmness in endeavoring to overcome the

obstacles imposed by Mother, the barriers were insurmountable. Id.

        Moreover, with regard to section 2511(a)(2), Father asserts that he

has not evidenced the repeated and continued incapacity, abuse, neglect or

refusal that has caused Children to be without essential parental care,

control or subsistence necessary for their well-being, and, to the extent that

his incarceration caused such incapacity, that cause has been remedied. Id.

at 8.    Father states that he did not become incarcerated until C.T.C. was

nine years old, and K.C.C. was six years old, and that he was involved in



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their lives and performed parental duties prior to his incarceration. Id. at

13. Father claims that, after his incarceration, he performed parental duties

by having his sister send cards and letters to Children on his behalf.       Id.

Father states that he has been committed to fighting for his parental rights

since his released from prison in March of 2016. Id. Father urges that his

temporary    incapacities   due   to   alleged   pain   medication   abuse   and

incarceration have been remedied, and that he is ready, able, and willing to

parent Children. Id.

      In its opinion, the trial court provided the following analysis of Section

2511(a)(1) and (2).

             Here, Father simply “failed to perform his parental
         duties” after May 30, 2013, if not before that date. By his
         own admission, Father did not attempt to contact Mother
         until July 2014 and his attempts were feeble, at best (i.e.,
         a Facebook contact and two emails). Father did not file a
         Petition with the Court in Milwaukee County seeking
         visitation or custody of [C]hildren[,] and Father did not
         bother to send [C]hildren birthday or Christmas cards or
         gifts. Moreover, even when he was not incarcerated,
         Father made no attempt to financially support [C]hildren.
         Rather, Father stood by and put the burden of supporting
         two growing boys solely on Mother’s shoulders.
         Fortunately, Mother dated and married a man that was
         willing to love and support [C]hildren. Accordingly, this
         [c]ourt affirms its finding that Mother proffered clear and
         convincing evidence with regard to both subsection (a)(1)
         and subsection (a)(2).

Trial Ct. Op. at 5.




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      In In re Adoption of S.P., our Supreme Court reiterated the

standard with which a parent must comply in order to avoid a finding that he

abandoned his child.

           Applying in McCray the provision for termination of
        parental rights based upon abandonment, now codified as
        § 2511(a)(1), we noted that a parent “has an affirmative
        duty to love, protect and support his child and to make an
        effort to maintain communication and association with that
        child.” [McCray] at 655.

                                  * * *

        Where the parent does not exercise reasonable firmness in
        declining to yield to obstacles, his other rights may be
        forfeited.

In re Adoption of S.P., 47 A.3d at 828 (quoting In re Adoption of

McCray, 331 A.2d at 655) (footnotes and internal quotation marks omitted).

Also in In re Adoption of S.P., our Supreme Court re-visited its decision in

In re R.I.S. and stated:

        [W]e now definitively hold that incarceration, while not a
        litmus test for termination, can be determinative of the
        question of whether a parent is incapable of providing
        “essential parental care, control or subsistence” and the
        length of the remaining confinement can be considered as
        highly relevant to whether “the conditions and causes of
        the incapacity, abuse, neglect or refusal cannot or will not
        be remedied by the parent,” sufficient to provide grounds
        for termination pursuant to 23 Pa.C.S. § 2511(a)(2). See
        e.g. Adoption of J.J., 515 A.2d at 891 (“A parent who is
        incapable of performing parental duties is just as
        parentally unfit as one who refuses to perform the
        duties.”); [In re] E.A.P., 944 A.2d [79,] 85 [(Pa. Super.
        2008)] (holding termination under § 2511(a)(2) supported
        by mother’s repeated incarcerations and failure to be
        present for child, which caused child to be without
        essential care and subsistence for most of her life and



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        which cannot be remedied despite mother’s compliance
        with various prison programs). If a court finds grounds for
        termination under subsection (a)(2), a court must
        determine whether termination is in the best interests of
        the child, considering the developmental, physical, and
        emotional needs and welfare of the child pursuant to §
        2511(b). In this regard, trial courts must carefully review
        the individual circumstances for every child to determine,
        inter alia, how a parent’s incarceration will factor into an
        assessment of the child’s best interest.

In re Adoption of S.P., 47 A.3d at 830–831.

     As the Supreme Court definitively ruled in In re Adoption of S.P., the

trial court may examine the effect of a parent’s incarceration in ruling on a

termination petition.    Herein, the trial court appropriately considered

Father’s incarceration in addressing the evidence offered to support the

termination of Father’s parental rights under section 2511(a)(1). The trial

court determined that Father failed to perform his parental duties for the

requisite six-month period. The trial court noted that Father’s explanation

for his failure to perform his parental duties and for his post-abandonment

conduct was his incarceration.     The trial court rejected, as insufficient,

Father’s two emails and a Facebook contact, noting they did not amount to

the performance of his parental duties.

     This Court has instructed:

        It is incumbent upon a parent when separated from his
        child to maintain communication and association with the
        child.   This requires an affirmative demonstration of
        parental devotion, imposing upon the parent the duty to
        exert himself, to take and maintain a place of importance
        in the child’s life.



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In re G.P.−R., 851 A.2d 967, 976 (Pa. Super. 2004).

      After our careful review of the trial court’s application of the law to the

facts of this case, we discern no reason to disturb its determination that

Father failed to perform his parental duties with regard to Children, and that

his explanations for his lack of contact were incredible.     We conclude that

the trial court’s determinations regarding section 2511(a)(1) are supported

by ample, competent evidence in the record. See In re Adoption of S.P.,

47 A.3d at 826–827.

      To satisfy the requirements of section 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

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).

      Our Supreme Court set forth our inquiry under section 2511(a)(2) as

follows:



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          [Section] 2511(a)(2) provides statutory grounds for
          termination of parental rights where it is demonstrated by
          clear and convincing evidence that “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.” . . . .

             This Court has addressed incapacity sufficient for
          termination under 23 Pa.C.S.A. § 2511(a)(2):

            A decision to terminate parental rights, never to be
            made lightly or without a sense of compassion for
            the parent, can seldom be more difficult than when
            termination is based upon parental incapacity. The
            legislature, however, in enacting the 1970 Adoption
            Act, concluded that a parent who is incapable of
            performing parental duties is just as parentally unfit
            as one who refuses to perform the duties.

          In re Adoption of J.J., 515 A.2d 883, 891 (Pa. 1986)
          (quoting In re William L., 383 A.2d 1228, 1239 (Pa.
          1978).

In re Adoption of S.P., 47 A.3d at 827.

     A parent is required to make diligent efforts toward the reasonably

prompt assumption of full parental responsibilities. In re A.L.D., 797 A.2d

at 340.      “[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.” Id.

     Moreover,

          incarceration is a factor, and [it] 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



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         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.

In re Adoption of S.P., 47 A.3d at 828.

      Pursuant to our Supreme Court’s pronouncement in In re Adoption

of S.P., the trial court properly considered the history of the case, including

Father’s incarceration, and his lack of contact with Children.      After      a

careful review of the record in this matter, we find the record supports the

trial court’s factual findings, and the court’s conclusions are not the result of

an error of law or an abuse of discretion. Id. at 826-27. We find no abuse

of discretion in the trial court’s termination of Father’s parental rights to

Children pursuant to section 2511(a)(2).

      Since we conclude that the requirements of 23 Pa.C.S. § 2511(a)(1)

and (2) were satisfied, we proceed to review whether the requirements of

subsection (b) were met.      In re Z.P., 994 A.2d 1108, 1121 (Pa. Super.

2010). We have stated that the focus in terminating parental rights under

23 Pa.C.S. § 2511(a) is on the parent, but, under subsection (b), the focus

is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super

2008) (en banc).

      In reviewing the evidence in support of termination under section

2511(b), our Supreme Court 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. § 2511(b). The emotional needs


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            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).

      With regard to section 2511(b), the trial court provided the following

analysis:

               Having determined that Father’s conduct warranted
            termination, the Court then turned to the issue of whether
            termination served the emotional needs and welfare of the
            children. The testimony at the hearing established without
            a doubt that the children’s best interests would be served
            by terminating Father’s parental rights and permitting the
            adoption by Stepfather to proceed.       The children and
            Stepfather have a very strong parent-child bond, which, as
            a result of Father’s actions, no longer exists between
            Father and the children. In addition, even though the
            children are not his “legal” sons, the Stepfather treats
            them as sons by supporting them developmentally,
            emotionally, and financially. As such, the second prong of
            the statute has been satisfied.

Trial Ct. Op. at 5-6.

      Father argues that the record does not support a finding that the

needs and welfare of Children are best met by terminating his parental

rights, in the absence of an expert assessment of the bond between Father

and Children. He requests this Court remand the case for the appointment

of a psychologist to assess the parental bond for consideration as part of the



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needs and welfare analysis under section 2511(b).         Father’s Brief at 8.

Father asserts that such a bond existed prior to his incarceration and the

obstacles that Mother consequently imposed during his incarceration. Id. at

14. He contends that it was improper for the trial court to sever that bond

without a consideration of the impact of severing the bond on Children. Id.

      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).      Although it is

often wise to have a bonding evaluation and make it part of the certified

record, “[t]here are some instances . . . where direct observation of the

interaction between the parent and the child is not necessary . . . .” In re

K.Z.S., 946 A.2d 753, 762 (Pa. Super. 2008).

      This Court has stated that a parent’s abuse and neglect are likewise a

relevant part of this analysis:

         concluding a child has a beneficial bond with a parent
         simply because the child harbors affection for the parent is
         not only dangerous, it is logically unsound. If a child’s
         feelings were the dispositive factor in the bonding analysis,
         the analysis would be reduced to an exercise in semantics
         as it is the rare child who, after being subject to neglect
         and abuse, is able to sift through the emotional wreckage
         and completely disavow a parent. . . . Nor are we of the
         opinion that the biological connection between [the parent]
         and the children is sufficient in of itself, or when
         considered in connection with a child’s feeling toward a
         parent, to establish a de facto beneficial bond exists. The



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         psychological aspect of parenthood is more important in
         terms of the development of the child and [his or her]
         mental and emotional health than the coincidence of
         biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations

and quotation marks omitted). Thus, the court may emphasize the safety

needs of the child. See In re K.Z.S., 946 A.2d at 763-764 (affirming the

involuntary termination of the mother’s parental rights, despite the existence

of some bond, where placement with the mother would be contrary to the

child’s best interests, and any bond with the mother would be fairly

attenuated when the child was separated from her, almost constantly, for

four years).

      This Court has stated: “[A] parent’s basic constitutional right to the

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

. her parental duties, to the child’s right to have proper parenting and

fulfillment    of   [the   child’s]   potential    in   a   permanent,   healthy,   safe

environment.” In re B., N.M., 856 A.2d at 856 (internal citations omitted).

It is well-settled that “we will not toll the well-being and permanency of [a

child] indefinitely.” In re Adoption of C.L.G., 956 A.2d at 1007 (citing In

re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (noting that 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.”)).

      After a careful review of the record in this matter, we find the record

supports the trial court’s factual findings, and the court’s conclusions are not


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the result of an error of law or an abuse of discretion with regard to Section

2511(b). In re Adoption of S.P., 47 A.3d at 826-27. Accordingly, it was

proper for the trial court to find no bond exists such that Children would

suffer    permanent    emotional   harm   if   Father’s   parental   rights   were

terminated.

         We, therefore, affirm the order terminating Father’s parental rights

with regard to Children under Section 2511(1), (2), and (b).

         Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2016




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