J-S44018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: B.G.H., A MINOR           IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                       Appellee



APPEAL OF: K.G., FATHER

                                                   No. 586 EDA 2017


                Appeal from the Decree February 6, 2017
          In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000585-2015, CP-51-DP-0002503-2013

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                           Filed August 4, 2017

      K.G. (“Father”) appeals from the trial court’s decree entered on

February 6, 2017, which granted the petition filed by the Philadelphia

Department of Human Services (“DHS”) to involuntarily terminate his

parental rights to S.G. a/k/a B.G.H. (“Child”), born in December of 2013,

pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b) of the Adoption

Act, 23 Pa.C.S. §§ 2101-2938. For the reasons that follow, we affirm.

      The trial court summarized the facts and procedural history of this

case as follows:

             On December 15, 2013, Child’s family became known to
      [DHS] through a General Protective Services (“GPS”) report
      alleging that Child’s mother (“Mother”) tested positive for
      marijuana during her first prenatal appointment and that Mother
      tested positive for marijuana at Child’s birth1. The GPS Report
      also alleged that Mother had a history of depression and that
      Father and Mother were not prepared to provide care for Child.
      On December 17, 2013, DHS attempted to conduct a home visit;
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      however, Father was not present at his residence, a hotel room
      located at the Parker-Spruce Hotel. On December 18, 201[3],
      DHS met with Father at the hotel to conduct a home visit. DHS
      observed inadequate baby supplies for the infant Child. The
      family had just two blankets and a bassinette. The hotel room
      had no refrigerator or stove. Father and Mother had been living
      at the hotel for over one year. Thereafter, DHS learned that
      Father was found guilty of indecent sexual assault of a person
      less than 13 years of age on October 15, 2012 and for failure to
      comply with registration of sexual offender requirements under
      Meghan’s [sic] Law. Father was ultimately incarcerated as a
      result of a conviction for not registering in compliance with
      Meghan’s [sic] Law requirements.
             1
               The parental rights of Mother were terminated at
             the same termination hearing on February 6, 2017.
             Mother has not filed an Appeal.

             On December 19, 2013, DHS obtained an Order of
      Protective Custody (“OPC”) for Child and placed Child in foster
      care.    At the adjudicatory hearing on December 30, 2013,
      Mother and Father appeared before the Honorable Jonathan
      Irvine and the Child was adjudicated dependent. On August 2,
      2015, the Community Umbrella Agency (“CUA”) developed a
      Single Case Plan (“SCP”). The objective for Child was to return
      to parent or guardian. The objective for Father was to resolve
      his legal issues.

Trial Court Opinion, 4/28/17, at 2-3 (internal citations omitted) (footnote in

original).

      On August 21, 2015, DHS filed a petition to terminate Father’s

parental rights to Child. On February 6, 2017, the trial court held a hearing

on the petition. At the conclusion of the hearing, the trial court involuntary




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terminated Father’s parental rights.1 Father filed a timely notice of appeal,

along with a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(a)(2)(i) and (b) on February 12, 2017.        The trial court

filed its opinion on April 4, 2017.

       On appeal, Father raises the following issues for our review:
____________________________________________


1
  We are cognizant of the Pennsylvania Supreme Court’s recent decision in
In re Adoption of L.B.M., wherein the author of the lead opinion,
Justice Wecht, stated that 23 Pa.C.S. § 2313(a) requires the trial court to
appoint counsel for a child in a termination-of-parental-rights case, and the
failure to do so is not harmless error. In part II-B of the lead opinion,
Justice Wecht concluded that a trial court is required to appoint counsel to
represent a child’s legal interests even when the child’s guardian ad litem
(“GAL”), who is appointed to represent the child’s best interests, is an
attorney. Justice Wecht would hold that the interests are distinct and
require separate representation. However, four members of the Court
disagreed with this strict application of Section 2313(a). Rather, they
opined, in various concurring and dissenting opinions, that separate
representation would be required only if the child’s best interests and legal
interests conflicted.

      We note that after publication, In re Adoption of L.B.M., 156 A.3d
1159 (Pa. 2017), was corrected and superseded on May 23, 2017, by In re
Adoption of L.B.M., ___A.3d ___, 2017 WL 2257203 (Pa. 2017), which,
inter alia, clarified that Part II-B of the opinion was not precedential and did
not overrule In re K.M., 53 A.3d 781 (Pa. Super. 2012) in its entirety.
Relevant to our discussion, in K.M. this Court held, inter alia, that 23 Pa.C.S.
§ 2313(a) did not require appointment of a separate attorney when a GAL,
who was an attorney, had been appointed and capably represented both the
legal and best interests of the child. The non-precedential Part II-B of
Adoption of L.B.M. does not disturb this portion of K.M.

      In the present case, Father did not raise before the trial court any
concerns that would have created a need for independent legal counsel for
Child, nor did he make any claims that the GAL did not properly represent
Child’s legal and best interests. In fact, we observe that the GAL, who is
also an attorney, well represented Child on both fronts, and that Child’s legal
and best interests were not in conflict.



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       1.    Whether the trial court erred and/or abused its discretion
       by terminating the parental rights of [F]ather, K.G., pursuant to
       23 Pa.C.S. [§] 2511(a)(1) where [F]ather presented evidence
       that he substantially met his FSP goals and tried to perform his
       parental duties.

       2.    Whether the trial court erred and/or abused its discretion
       by terminating the parental rights of [F]ather, K.G., pursuant to
       23 Pa.C.S. [§] 2511(a)(2) where [F]ather presented evidence
       that he has remedied his situation because he took parenting,
       drug treatment, sex offender and violence prevention programs.
       Father has the present capacity to care for his child.

       3.     Whether the trial court erred and/or abused its discretion
       by terminating the parental rights of [F]ather, K.G., pursuant to
       23 Pa.C.S. [§] 2511(a)(5) where evidence was provided to
       establish that the child was removed from the care of the father
       and mother, and that [F]ather is now capable of caring for his
       child.

       4.     Whether the trial court erred and/or abused its discretion
       by terminating the parental rights of [F]ather, K.G., pursuant to
       23 Pa.C.S. [§] 2511(a)(8) where evidence was presented to
       show that [F]ather is now capable of caring for his child since he
       has completed parenting and is receiving treatment for drug and
       alcohol, violence prevention and sex offender.       Additionally,
       [F]ather will have housing upon his release from prison which
       will be appropriate housing for his child.

       5.    Whether the trial court erred and/or abused its discretion
       by terminating the parental rights of [F]ather, K.G., pursuant to
       23 Pa.C.S. [§] 2511(b) where evidence was presented that
       established that [F]ather had visited his child before he was
       incarcerated. Father made every effort to keep in contact with
       his child but was denied visits.

Father’s Brief at 7.2


____________________________________________


2
 Father framed his issues somewhat differently in his concise statement, but
we find them sufficiently preserved for our review.



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      Our standard of review for cases involving the termination of parental

rights is as follows:

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

In re J.F.M., 71 A.3d 989, 992 (Pa. Super. 2013) (quoting In re R.N.J.,

985 A.2d 273, 276 (Pa. Super. 2009)). “The trial court is free to make all

credibility determinations, and may believe all, part, or none of the evidence

presented.”    Id.      Importantly, “[i]f the findings of the trial court are

supported by competent evidence, we will affirm even if the record could

also support the opposite result.” Id.

      When deciding a case under 23 Pa.C.S. § 2511, the trial court must

engage in a bifurcated process. In re B.C., 36 A.3d 601, 606 (Pa. Super.

2012). In that analysis:

      [t]he initial 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 at least one of the
      nine statutory grounds in section 2511(a). If the trial court
      determines that the parent’s conduct warrants termination under
      section 2511(a), then it must engage in an analysis of the best
      interests of the child under section 2511(b), taking into primary
      consideration the developmental, physical, and emotional needs
      of the child.


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Id.

      Father’s first four issues challenge the termination of his rights under

Section 2511(a). We note that the trial court terminated Father’s parental

rights to Child pursuant to subsections (1), (2), (5) and (8) of Section

2511(a).    Indeed, “[t]his Court may affirm the trial court’s decision

regarding the termination of parental rights with regard to any one

subsection of Section 2511(a).”    In re J.F.M., 71 A.3d 992.     Herein, we

focus our analysis on section 2511(a)(2).

      To satisfy the requirements of Section 2511(a)(2), the moving party

must produce clear and convincing evidence that the following three

conditions are met: (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.       In re Adoption of

M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003); 23 Pa.C.S. § 2511(a)(2).

The grounds for termination of parental rights under Section 2511(a)(2),

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).




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     Father has been incarcerated repeatedly for most of Child’s life. Our

Supreme Court addressed the relevance of incarceration in termination

decisions under subsection 2511(a)(2) as follows:

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

In re Adoption of S.P., 47 A.3d 817, 829 (Pa. 2012). After revisiting its

decision in In re: R.I.S., 36 A.3d 567 (Pa. 2011), regarding incarcerated

parents, our Supreme Court further 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 [883,] 891
     [(Pa. 1986)] (“[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 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.

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

      Father contends that because he was expecting to be released from

incarceration on February 27, 2017, and had made reasonable efforts to

achieve sobriety, the trial court’s conclusion that he was incapable of

parenting Child lacked support.     Father’s Brief at 15.   Father asserts that

because he “will secure appropriate housing for his family upon his release

from prison,” and he is capable of caring for Child, the trial court erred by

terminating his parental rights pursuant to subsection 2511(a)(2).       Id. at

14.

      The trial court found that Father’s repeated incarcerations have

impaired his ability to parent Child.       Trial Court Opinion, 4/4/17, at 6.

Furthermore, the court credited the testimony of CUA caseworker, Andrew

Thayne (“Thayne”), stating:

      The CUA Representative testified that Father failed to meet his
      SCP objectives which were to maintain compliance with his legal
      issues, to continue to participate in sex offender classes, to meet
      the needs of the child, and to address drug and alcohol and
      mental health issues. Specifically, these legal issues concerned
      his incarceration as a registered sex offender and the follow up
      therapy he needed.       The CUA Representative testified that
      although Father did send letters to Child, the Child was
      displaying behaviors indicating that she was “terrified” to visit
      the Father in prison.

Id. at 5-6 (internal citation omitted).

      As we have stated many times, “[a] child’s life simply cannot be put on

hold in the hope that the parent will summon the ability to handle the


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responsibilities of parenting.” In re I.J., 972 A.2d 5, 9 (Pa. Super. 2009)

(quoting In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super.

2003)).

      Parental rights are not preserved by waiting for a more suitable
      or convenient time to perform one’s parental responsibilities
      while others provide the child with his or her physical and
      emotional needs. … This Court cannot and will not subordinate
      indefinitely a child’s need for permanence and stability to a
      parent’s claims of progress and hope for the future. Indeed, we
      work under statutory and case law that contemplates only a
      short period of time, to wit eighteen (18) months, in which to
      complete the process of either reunification or adoption for a
      child who has been placed in foster care. … [A] parent desiring
      to retain parental rights must exert himself to take and maintain
      a place of importance in his child’s life.

In re E.A.P., 944 A.2d at 83 (internal citations omitted).

      Our review of the record supports the trial court’s decision. Child was

removed from Father’s care by DHS based upon concerns regarding Father’s

drug and alcohol use, stability, housing, and criminal activity.          These

problems rendered him incapable of parenting Child at the time of her

removal.   Moreover, Father failed to address his mental-health concerns

throughout the life of this case, refusing to complete the court-ordered

evaluation at the Clinical Evaluation Unit (“CEU”) for a dual diagnosis

assessment. N.T., 2/6/17, at 13; DHS Exhibit 1. Further, although Father

made several efforts to achieve sobriety, he failed to appear for any random

drug screenings when he was out of prison.    N.T., 2/6/17, at 13.

      In the three years prior to the termination hearing, Father repeatedly

failed to comply with the sexual offender registration requirements under

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Megan’s Law for any appreciable amount of time, resulting in his nearly

continuous incarceration throughout Child’s entire lifetime.    Id. at 14, 26.

Father did not regularly visit or otherwise communicate with Child, having

last seen her approximately two years prior to the termination hearing. Id.

at 15.   Father has been incapable of providing parental care, control or

subsistence for Child’s physical and mental well-being, and this incapacity

persisted to the day of the termination hearing. We, therefore, find no error

or abuse of discretion in the trial court’s decision to terminate Father’s

parental rights to Child pursuant to 23 Pa.C.S. § 2511(a)(2).

     We now turn to Section 2511(b), which states:

           (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.

23 Pa.C.S. § 2511(b).       Under Section 2511(b), we inquire whether

termination of parental rights would best serve the developmental, physical,

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

1286-1287 (Pa. Super. 2005). “Intangibles such as love, comfort, security,

and stability are involved in the inquiry into the needs and welfare of the

child.” Id. at 1287 (citation omitted). The trial court must also discern the

nature and status of the parent-child bond, with utmost attention to the

effect on the child of permanently severing that bond. Id. The mere finding

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of a parent-child bond does not preclude termination of parental rights;

rather, the trial court must examine the status of the bond to determine

whether its termination “would destroy an existing, necessary and beneficial

relationship.”   In re Adoption of T.B.B., 835 A.2d 387, 397 (Pa. Super.

2003).      “[A] court may properly terminate parental bonds which exist in

form but not in substance when preservation of the parental bond would

consign a child to an indefinite, unhappy, and unstable future devoid of the

irreducible minimum parental care to which that child is entitled.”       In re

J.W., 578 A.2d 952, 958 (Pa. Super. 1990) (emphases in original). Expert

testimony is not required for the trial court to determine if there is a positive

bond between a parent and his child. In re K.K.R.-S., 958 A.2d 529, 533

(Pa. Super. 2008).

      Father asserts that because he sent cards and pictures to Child, there

is necessarily a bond between them, and termination of Father’s parental

rights “does [not] serve the child’s physical and emotional needs and

welfare.”    Father’s Brief at 17-18.    In assessing the bond between Father

and Child, the trial court found that Father’s instability and inability to

protect Child supported the conclusion that termination of Father’s parental

rights would be in the best interest of Child. Trial Court Opinion, 4/4/17, at

6.

      The record supports the trial court’s decision.     Although Father has

expressed his desire to raise Child upon his release from prison, Father has


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not been able to meet the essential needs of Child. Notably, Father testified

that he would be released from prison to a halfway house that prohibits

children.   N.T., 2/6/17, at 22.   Accordingly, Father’s release from prison

would not result in Father and Child’s reunification.

        We likewise reject Father’s argument that because he sent cards and

pictures to Child, a parent-child bond necessarily existed between them.

Father’s gestures, standing alone, are insufficient to forge a meaningful

relationship with Child.   See In re Z.P., 944 A.2d 108, 1125 (Pa. Super.

2010) (concluding that a child should not be placed in foster care indefinitely

“just because an incarcerated parent … shows interest in his child[.]”).

Indeed, the harsh reality is that Child does not even know who Father is,

and this Court has repeatedly held that a parent’s own feelings of love and

affection for a child do not prevent termination of parental rights.    Id. at

1121.

        Additionally, Thayne testified that Child has lived with her foster

parents since she was six days old and that a strong bond exists between

Child and her foster parents. N.T., 2/6/17, at 15. Notably, Child refers to

her foster mother as “mom” and her foster father as “Baba.”         Id. at 17.

Thayne testified that Child’s foster parents provide her with a home, meet

her needs, maintain much-needed stability, and provide a parent-child

relationship. Id. at 18.




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     Based on the record before us, we find no error or abuse of discretion

in the trial court’s conclusion regarding Section 2511(b) that Child’s

developmental, emotional, and physical needs and welfare are best met by

terminating Father’s parental rights. We, therefore, affirm the trial court’s

decree.

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2017




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