J-S94009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: H.J.L., A MINOR               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee



APPEAL OF: J.A.S., FATHER

                            Appellant                 No. 1381 MDA 2016


                      Appeal from the Decree July 22, 2016
               In the Court of Common Pleas of Lancaster County
                     Orphans' Court at No(s): 36-2016-0552


BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED DECEMBER 22, 2016

        J.A.S. (Father) appeals from the trial court’s order involuntarily

terminating his parental rights to his daughter, H.J.L. (Child) (born 7/2009).

After careful review, we affirm.1

        From 2006 through 2014, Lancaster County Children and Youth Social

Service    Agency (Agency) received multiple        reports of child neglect,

unsanitary home conditions, domestic violence, inappropriate persons

residing in Child’s home and drug dealing in the home where Child resided



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 Child’s Guardian Ad Litem has indicated that he concurs with the position of
petitioner, Lancaster County Children and Youth Social Service Agency.
J-S94009-16



with Mother.2 In addition, Mother tested positive for marijuana and heroin

use. Father resided in the house with Mother and Child until February 2013,

when he was incarcerated for robbery, resisting arrest and related offenses.

Father remained in county prison until February 2014; this was the last time

he saw Child. In February 2014, Father was transferred to SCI-Camp Hill; in

July 2014, he was transferred to SCI-Retreat. Father is due to be released

from prison in February 2017.

       In January 2015, the Agency filed for temporary physical and legal

custody of Child; she was adjudicated dependent and placed in foster care.

In November 2015, Child was placed in a foster home where she remains to

date; it is a pre-adoptive placement.            Child has bonded with her foster

parents and attends weekly therapy sessions where she addresses her

emotional distress, anger problems, and anxiety issues.

       After receiving a letter from an Agency employee in 2015, Father

requested contact with Child. In late November 2015, Father began to write

Child letters on a weekly/bi-weekly basis.

       On January 19, 2016, the Agency filed a petition to involuntarily

terminate Father’s parental rights to Child. On May 23, 2016, and July 18,




____________________________________________


2
  Mother consented to termination of her parental rights to Child in July
2016. She is not a party to this appeal.




                                           -2-
J-S94009-16



2016, the court held termination hearings.3        On July 22, 2016, the court

terminated Father’s parental rights to Child pursuant sections 2511(a)(1),

(a)(2), (a)(5), and (b) of the Adoption Act.4 Father filed a timely appeal in

which he raises the following issues for our consideration:

       (1)    Did the trial court err and abuse its discretion in
              terminating the parental rights of Father where he exerted
              [a] sincere and genuine effort to maintaining the parent-
              child relationship, used the resources available to him to
              preserve the parental relationship, exercised reasonable
              firmness in resisting obstacles placed in the way of
              maintaining the relationship, and where Father may be
              released from prison in a reasonable period of time?

       (2)    Did the trial court err and abuse its discretion in finding
              that there is clear and convincing evidence that it is in
              H.J.L.’s best interest to terminate Father’s parental rights?

       We review a trial court’s decision to involuntarily terminate parental

rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560,

563 (Pa. Super. 2003).           Our scope of review is limited to determining

whether the trial court’s order is supported by competent evidence.           Id.

Moreover,

       In a proceeding to terminate parental rights involuntarily, the
       burden of proof is on the party seeking termination to establish
       by clear and convincing evidence the existence of grounds for
       doing so. The standard of clear and convincing evidence is
       defined as testimony that is so “clear, direct, weighty and
____________________________________________


3
 On April 11, 2016, the court also held a review hearing where Father,
Mother, and several agency employees testified.
4
    See 23 Pa.C.S. §§ 2101-2910.




                                           -3-
J-S94009-16


      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.” It is well established that a court must examine the
      individual circumstances of each and every case and consider all
      explanations offered by the parent to determine if the evidence
      in light of the totality of the circumstances clearly warrants
      termination.

In re adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation

omitted). See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party

seeking termination of parental rights bears burden of proving by clear and

convincing evidence that at least one of eight grounds for termination under

23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs

and welfare of child set forth in 23 Pa.C.S. § 2511(b)).

      After reviewing the parties’ briefs, the record, and relevant case law,

we affirm the trial court’s order involuntarily terminating Father’s parental

rights to Child on the basis of the well-written decision authored by the

Honorable Leslie Gorbey. While Father may have the “intent to improve his

parenting capacity and ability to provide for H.J.L.,” Appellant’s Brief, at 17,

this does not overcome the fact that he has failed to assert a place of

importance in Child’s life while he has been incarcerated.            See In re

Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012) (while incarceration neither

compels nor precludes termination, it is potentially determinative factor in

court’s   conclusion   that   grounds   for   termination   exist   under   section

2511(a)(2) where repeated and continued incapacity of parent due to

incarceration has caused child to be without essential parental care, control

or subsistence and causes of incapacity cannot or will not be remedied). In


                                        -4-
J-S94009-16



addition, even though Father may believe that Child “deserves the

opportunity to have a relationship with [him,]” Appellant’s Brief, at 17, this

does    not   change     the    fact   that    Father   simply   cannot    meet   “the

developmental, physical and emotional needs and welfare of [Child].”               23

Pa.C.S. § 2511(b). Father has not seen his daughter for more than half of

her young life, he has not asked the Agency about Child’s wellbeing, there is

no apparent parent-child bond, and Child has no desire to respond to

Father’s letters. Finally, the positive impact that the foster parents have had

on Child’s emotional and developmental needs is significant and supports the

trial court’s decision to terminate Father’s parental rights under section

2511(b).      N.T. Termination Hearing, 5/23/16, at 26, 49.               See In the

Interest of T.A.C., 110 A.3d 1028 (Pa. Super. 2015).

       Order affirmed.5

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2016



____________________________________________


5
  We instruct the parties to attach a copy of Judge Gorbey’s opinion in the
event of further proceedings in the matter.



                                           -5-
