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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: ADOPTION OF: D.J.J. (MINOR              IN THE SUPERIOR COURT OF
CHILD)                                               PENNSYLVANIA


APPEAL OF: C.J., FATHER                        No. 1946 WDA 2015


            Appeal from the Order entered November 10, 2015,
      in the Court of Common Pleas of Washington County, Orphans’
                        Court, at No(s): 63-15-0603

BEFORE: GANTMAN, P.J., OLSON, and FITZGERALD*, JJ.

MEMORANDUM BY OLSON, J.:                              FILED MAY 09, 2016

     C.J. (“Father”) appeals from the order dated and entered on November

10, 2015, granting the petition filed by the Washington County Children and

Youth Social Service Agency (“CYS” or the “Agency”) to involuntarily

terminate his parental rights to his dependent, minor child, D.J.J., a/k/a

D.J.Ja., a male born in March of 2013, (“Child”), pursuant to the Adoption

Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), and (b).1 We affirm.

     The trial court has set forth the relevant history of this case in its

Opinion.   See Trial Court Opinion, 11/10/15, at 1-11.       We adopt the trial

court’s recitation for purposes of this appeal, and we set forth herein only




* Former Justice specially assigned to the Superior Court.
1
  On November 24, 2015, the trial court voluntarily terminated the parental
rights of K.J., a/k/a K.Ja., the natural mother of Child, (“Mother”). Mother
did not file an appeal of her own, and she is not a party to this appeal, nor
has she filed any brief in relation to this appeal.
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those facts, as found by the trial court, that are necessary to understand our

disposition of the appeal. See id.

      Due to his incarceration, [Father] has never performed parental
      duties for or provided direct financial support to [Child]. In his
      first thirty (30) months of life, [Child] has endured two separate
      periods of supervision by CYS. Since early August of 2014, he
      has lived in Agency foster care. His mother[,] afflicted with a
      recalcitrant addiction to controlled substances[,] exposed him to
      unsafe living conditions and according to [Father] physical abuse
      by [M]other’s paramour. [Child] has encountered speech and
      physical developmental delays. [Father] has not been available
      to assist [Child] with any of these challenges. [Father] has
      maintained only very limited contact with [Child]. [Father] has
      for the most of the last (10) ten years and all of [Child’s] life
      been incarcerated. [Father] has completed many rehabilitative
      programs while incarcerated at SCI – Mercer. However, at the
      time of the termination proceeding [Father] could only advise
      this court that he could be paroled in November of 2015 and he
      could be released to a half-way house.

Trial Court Opinion, 11/10/15, at 12-13.

      On November 10, 1015, the trial court filed its Opinion and Order

granting the petition to involuntarily terminate the parental rights of Father

to Child, pursuant to section 2511(a)(1), (2), (5), and (b) of the Adoption

Act. On December 9, 2015, Father timely filed a 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), in which he raised nine issues for review.

      In his brief on appeal, Father raises two questions for this Court’s

review, as follows:

      I. Whether the trial court erred in terminating Father’s parental
      rights pursuant to § 2511(a)(1)(2) and (5) when Father
      complied, to the best of his ability while incarcerated, with the
      requirements set forth by the court[?]

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      II. Whether the trial court erred in terminating Father’s parental
      rights pursuant to § 2511(a)(1)(2) and (5) when Father was
      never provided any contact with the minor child since the time of
      adjudication except for cards and letters[?]

Father’s Brief, at 4.2

      In his first issue, Father essentially argues that there was insufficient

evidence to support the involuntary termination of his parental rights

pursuant to section 2511(a)(1), (2), and (5).        Father contends that his

incarceration severely limited his ability to maintain contact with Child, but

he did maintain contact to the best of his ability, and he completed all

programs available to him while incarcerated at the State Correctional

Institution (“SCI”) - Mercer.   In his second issue, Father asserts that CYS

failed to provide him with the opportunity for reunification with Child,

because CYS never permitted him to have face-to-face contact with Child.

Accordingly, Father urges that the trial court erred in terminating his

parental rights.

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

adhere to the following standard:

      [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., 608 Pa. 9, 9

2
  Father stated his issues somewhat differently in his concise statement.
We, nevertheless, find that Father preserved the issues in his brief for our
review.
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     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., [614
     Pa. 275, 284,] 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., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa.
     2011); Christianson v. Ely, [575 Pa. 647, 654-655], 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., [608 Pa. at
     28-30], 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, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (Pa.

2012).

     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 explained:

     [t]he standard of clear and convincing evidence is defined as
     testimony that is so “clear, direct, weighty and convincing as to

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     enable the trier of fact to come to a clear conviction, without
     hesitance, of the truth of the precise facts in issue.”

Id. quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

     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).     The trial court terminated Father’s parental rights under section

2511(a)(1), (2), (5), and (b). See Trial Court Opinion, 11/10/15, at 11-12,

15-20.3 Section 2511(a)(1), (2), (5), and (b) provide 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, abuse, neglect or
           refusal cannot or will not be remedied by the parent.

                                     ***

3
 We note that, on the second page of its order, the trial court apparently
made a clerical error in citing 23 Pa.C.S.A. § 2511(a)(1), which was not
quoted in the order. Moreover, although the trial court did not cite section
2511(b) in its order, it discussed and considered section 2511(b) in its
Opinion that accompanied the order. See Trial Court Opinion, 5/12/15, at
16-17.
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         (5) The child has been removed from the care of the
         parent by the court or under a voluntary agreement with
         an agency for a period of at least six months, the
         conditions which led to the removal or placement of the
         child continue to exist, the parent cannot or will not
         remedy those conditions within a reasonable period of
         time, the services or assistance reasonably available to
         the parent are not likely to remedy the conditions which
         led to the removal or placement of the child within a
         reasonable period of time and termination of the parental
         rights would best serve the needs and welfare of the
         child.

                                   ***

     (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.

     This Court has explained that the focus in terminating parental rights

under section 2511(a) is on the parent, but, under section 2511(b), the

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

Super. 2008) (en banc).      As we may affirm the trial court’s decision

regarding the termination of parental rights with regard to any one

subsection of section 2511(a), we will focus on subsection 2511(a)(2).




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     First, we find there is competent evidence in the record to support the

involuntary    termination   of   Father’s   parental   rights   under   subsection

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

2511(a)(2) as follows.

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

        [The Supreme Court] has addressed incapacity sufficient for
        termination under § 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., [511 Pa. 590, 605,] 515 A.2d 883,
        891 (Pa. 1986), quoting In re: William L., [477 Pa. 322,
        345,] 383 A.2d 1228, 1239 (Pa. 1978).

In re Adoption of S.P., 616 Pa. at 326-327, 47 A.3d at 827.

     This Court stated that a parent is required to make diligent efforts

towards the reasonably prompt assumption of full parental responsibilities.

In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).                A parent’s vow to

cooperate, after a long period of uncooperativeness regarding the necessity


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or availability of services, may properly be rejected as untimely or

disingenuous. Id. at 340.

     In In re Adoption of S.P., our Supreme Court instructed:

        incarceration 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 [] the causes of the incapacity cannot or
        will not be remedied.

In re Adoption of S.P., 616 Pa. at 328-329, 47 A.3d at 828.

     After re-visiting its decision in In re: R.I.S., 36 A.3d 567, 572 (Pa.

2011), regarding incarcerated parents, the Supreme Court stated:

        we 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.A.] § 2511(a)(2). [See
        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., 616 Pa. at 331-332, 47 A.3d at 830-831 (some

internal citations omitted).

      Here, the trial court found as follows:

      The individual circumstances of this case clearly warrant
      termination. Despite his diligent efforts to complete available
      rehabilitation programs within the correctional system, the
      record contains no credible or persuasive evidence that [Father]
      has remedied his parental incapacity. For [Father,] his road to
      recovery and rehabilitation will not end when he is released from
      incarceration. [Father] will be placed in a half-way house. No
      credible or persuasive evidence was offered to indicate whether
      [Child] could reside with [Father] at the half-way house. The
      record contains no evidence that [Father] upon his release will
      have employment to support [Child], permanent housing for
      [Child] and transportation necessary to maintain [Child’s]
      consistent attendance in physical, occupational and speech
      therapy. 23 Pa.C.S.A. § 5329 will require the court to further
      determine whether [Father] poses a threat of harm [to Child].
      because of [Father’s] conviction for Corruption of Minors where
      the victim was a four (4) year old child.5 Timely permanency for
      [Child] will be delayed further in the hope that [Father] will be
      successful in his ongoing rehabilitation and parole and not pose a
      threat to harm [Child]. After a tumultuous first thirty months of
      life, [Child] is entitled to the certainty of knowing that the home
      and family he is with is forever.
      ___________________________________________________
      5
          23 Pa.C.S.A. § 5329 provides

      Offenses. – Where a party seeks any form of custody, the court
      shall consider whether that party or member of that party’s
      household has been convicted of or has pleaded guilty or no
      contest to any of the offenses in this section or an offense in
      another jurisdiction substantially equivalent to any of the
      offenses in this section. The court shall consider such conduct
      and determine that the party does not pose a threat of harm to
      the child before making any order of custody to that parent
      when considering the following offenses:

      . . . 18 Pa.C.S. § 6301 (relating to corruption of minors).

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Trial Court Opinion, 11/10/15, at 14-15.

       We find that the competent evidence in the record supports the trial

court’s decision and, thus, the trial court did not abuse its discretion in

terminating Father’s parental rights under section 2511(a)(2).          In re

Adoption of S.P., 616 Pa. at 325-26, 47 A.3d at 826-27. See Trial Court

Opinion, 11/10/15, at 12-15; Trial Court Rule 1925(a) Opinion, 1/8/16, at

2-6.

       In his second issue, “Father contends that the Agency did not exercise

the necessary efforts in attempting to reunify the family in this case as

Father was never offered any visitation at the correctional facility.” Father’s

Brief at 15. Our Supreme Court, however, recently rejected the argument

that the provision of reasonable efforts by the county children’s services

agency is a factor in terminating parental rights to a child.     See In the

Interest of: D.C.D., a Minor, 105 A.3d 662, 673-674, 676 (Pa. 2014)

(rejecting the suggestion that an agency must provide reasonable efforts to

enable a parent to reunify with a child prior to the termination of parental

rights, and rejecting the suggestion that section 2511 of the Adoption Act

should be read in conjunction with section 6351 of the Juvenile Act,

particularly section 6351(f)(9)(iii)).   Thus, based on our Supreme Court’s




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holding in In the Interest of: D.C.D., a Minor, we find that Father’s

second issue lacks merit.4


4
  We note that Father does not discuss section 2511(b) in either his concise
statement or his brief on appeal. Thus, we find that Father waived any
challenge relating to section 2511(b). Krebs v. United Refining Company
of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an
appellant waives issues that are not raised in both his concise statement and
the statement of questions involved in his brief); Lackner v. Glosser, 892
A.2d 21, 29-30 (Pa. Super. 2006) (citations omitted) (“Appellate arguments
which fail to adhere to [Pa.R.A.P. 2119] may be considered waived, and
arguments which are not appropriately developed are waived. Arguments
not appropriately developed include those where the party has failed to cite
any authority in support of a contention.”).

Even if Father properly raised and preserved a challenge to the termination
of his parental rights under section 2511(b), we would conclude that such a
claim lacks merit. Our Supreme Court recently 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 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., [533 Pa. 115, 121, 620
     A.2d 481, 485 (Pa. 1993)], th[e Supreme] 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., 620 Pa. 602, 628-629, 71 A.3d 251, 267 (Pa. 2013).

Applying the applicable needs and welfare analysis, we would adopt the trial
court’s discussion of section 2511(b) in its opinion entered on November 10,
2015, as this Court’s own. See Trial Court Opinion, 11/10/15, at 15-20;
Trial Court Rule 1925(a) Opinion, 1/8/16, at 6-10. The trial court properly
relied on the case law in In re Adoption of S.P., supra, to set forth our
Supreme Court’s instructions regarding involuntary termination of parental
rights of an incarcerated parent pursuant to section 2511(b). We find
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      For each of the foregoing reasons, we affirm the trial court’s order

involuntarily terminating Father’s parental rights.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/9/2016




competent evidence in the record to support the trial court’s decision and,
thus, discern no abuse of discretion in terminating Father’s parental rights
under section 2511(b). In re Adoption of S.P., 616 Pa. at 325-26, 47 A.3d
at 826-27.

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