J. S69017/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.C., A MINOR        :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
APPEAL OF J.C., Jr., FATHER,             :
                                         :         No. 2067 EDA 2015
                       Appellant         :


               Appeal from the Decree Entered June 11, 2015,
               in the Court of Common Pleas of Wayne County
                       Civil Division at No. 11 AD 2015


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.

MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED JANUARY 26, 2016

      J.C., Jr. (“Father”), appeals from the decree dated and entered on

June 11, 2015, in the Wayne County Court of Common Pleas, Civil Division,

involuntarily terminating his parental rights to his minor daughter, D.C.

(“Child”), born in October of 2014, pursuant to Section 2511(a)(2), (5), and

(b) of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2), (5), and (b). 1        We

affirm.

      The relevant facts and procedural history of this case are as follows.

In October 2014, Child was born with fetal alcohol syndrome. (Trial court

opinion, 7/31/15 at 2.)    On October 9, 2014, Wayne County Children &

Youth Services (“CYS”) petitioned for and obtained emergency protective

custody of Child due to parents’ drug use and intellectual limitations. (Id.)


1
 The trial court’s decree also involuntarily terminated D.L.C.’s (“Mother’s”)
parental rights to Child. Mother has not filed an appeal from the trial court’s
decree, nor is she a party to this appeal.
J. S69017/15


That same day, CYS placed Child in foster care.       At this time, Father was

receiving financial support from and living with his 83-year-old father

(“Paternal Grandfather”) at Paternal Grandfather’s residence, which a CYS

caseworker described as unclean and in disarray. (Id.) Father’s only source

of income was from collecting scrap metal and Social Security Disability

Insurance. (Id.)

      Prior to Child’s birth, Father had been in and out of rehabilitation

facilities for substance abuse issues on four separate occasions. (Id.) On

October 22, 2014, Father entered a rehabilitation facility for the fifth time

only to sign himself out on October 30, 2014, a mere eight days later. (Id.)

On October 27, 2014, a permanency plan was developed with the

overarching objective that Father maintain his sobriety.       On November 4,

2014, a permanency review hearing took place, at the conclusion of which

the trial court adjudicated Child dependent and ordered that temporary legal

and physical custody of Child remain with CYS. The trial court instituted a

visitation schedule permitting Father supervised visits with Child each week,

from Monday through Friday, for five hours per day.         The trial court also

ordered Father to undergo a parental fitness evaluation to be conducted by a

licensed   psychologist.    On   November     13,   2014,   Father   entered   a

rehabilitation facility for the sixth time only to sign himself out once again on

or about December 7, 2014. Id.




                                      -2-
J. S69017/15


      On December 22, 2014, and December 29, 2014, Father refused to

submit to random drug screens, as required under the permanency plan.

(Notes of testimony, 6/10/15 at 9.)         On January 9, 2015, Father tested

positive for synthetic cannabinoids and, on January 15, 2015, tested positive

for methamphetamines.        (Id.)     On January 26, 2015, Father became

incarcerated for possessing hypodermic needles in violation of the terms of

his parole stemming from an earlier theft conviction. His prospective release

date is March 25, 2016. (Id. at 17.) On February 24, 2015, the trial court

changed Child’s permanency goal from return to parent to adoption.

      On April 29, 2015, CYS filed a petition to involuntarily terminate

Mother and Father’s parental rights to Child, alleging the elements of

Section 2511(a)(2), (5), and (b) of the Adoption Act. On June 10, 2015, the

trial court held a termination hearing. Mother did not appear for the hearing

but was represented by counsel, and Father participated in the hearing via

telephone      conference.        At     the    hearing,    CYS     caseworker,

Bernadette Musgrove, testified as to Father’s failure to maintain his sobriety

throughout the duration of Child’s placement.       (Id. at 9.)   Ms. Musgrove

testified further that up until his incarceration, “[Father] didn’t complete any

full visit[s] [with Child] . . . and that he typically left about halfway through

each visit if not sooner. (Id. at 10.) Judith Munoz, the psychologist who

conducted Father’s parental fitness evaluation, also testified at the hearing.

Ms. Munoz testified, in part, as follows:



                                       -3-
J. S69017/15


                 [Father’s] intellectual deficits. . . .[,] [h]is
           second grade reading level, his extensive history of
           substance abuse with noncompliance and treatment,
           unstable relationships, significant physical health
           concerns, poor social judgment and financial
           irresponsibility result in the need for supervis[ion]
           and assistance in daily living in order to live in the
           community and interfere with his ability to care for a
           child. I felt that he remained at a high risk for
           relapse for drug and alcohol abuse because he has
           very poor coping skills[,] and he admitted that he
           loves his opiates. Behaviorally[,] he was unable to
           sustain interest in visiting with [Child] in spite of not
           working and having access to transportation. . . .
           He’s unable to care for a child independently and[,]
           behaviorally[,] was unable to demonstrate care,
           concern or bonding with [Child].

Id. at 32-33. Ms. Munoz testified further that she does not believe Father

has a bond with Child and would be supportive of Child’s adoption. (Id.)

     On June 11, 2015, the trial court issued the underlying decree,

involuntarily terminating Father’s parental rights to Child pursuant to

Section 2511(a)(2), (5), and (b) of the Adoption Act.        On July 9, 2015,

Father filed a timely notice of appeal but failed to simultaneously file a

concise statement of errors complained of on appeal, in contravention of

Pa.R.A.P. 1925(a)(2)(i) and (b).    As a result, on July 23, 2015, the trial

court issued an order directing Father to file a concise statement of errors




                                     -4-
J. S69017/15


complained of on appeal no later than July 30, 2015. Thereafter, on July 28,

2015, Father filed a concise statement of errors complained of on appeal.2

      On appeal, Father raises three issues for our review:

            1.     Whether the [trial court] erred in finding to
                   terminate the parental right[s] of [Father]
                   pursuant to [23 Pa.C.S. § 2511(a)(2)]?

            2.     Whether the [trial court] erred in finding to
                   terminate the parental right[s] of [Father]
                   pursuant to [23 Pa.C.S. § 2511(a)(5)]?

            3.     Whether the [trial court] erred in finding to
                   terminate the parental right[s] of [Father]
                   pursuant to [23 Pa.C.S. § 2511(b)]?

Father’s brief at 4.

      We review appeals from the involuntary termination of parental rights

according 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

2
  Although Father failed to comply with Pa.R.A.P. 1925(a)(2)(i) and (b),
relating to children’s fast track appeals, we decline to dismiss or quash his
appeal. See In re K.T.E.L., 983 A.2d 745, 747 (Pa.Super. 2009) (holding
that the failure to file a concise statement of errors complained of on appeal
with the notice of appeal will result in a defective notice of appeal, to be
disposed of on a case-by-case basis). Here, Father filed his Rule 1925(b)
statement 19 days after filing the notice of appeal. However, since the
misstep was not prejudicial to any of the parties and did not impede the trial
court’s ability to issue a thorough opinion, the procedural error was
harmless. Cf. J.P. v. S.P., 991 A.2d 904 (Pa.Super. 2010) (appellant
waived all issues by failing to timely comply with the trial court’s direct order
to file a concise statement).


                                       -5-
J. S69017/15


           supported by the record. In re: R.J.T., 608 Pa. 9, 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., [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., 47 A.3d 817, 826-827 (Pa. 2012).

     Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. § 2511, which requires a bifurcated analysis:



                                     -6-
J. S69017/15


           Our case law has made clear that under
           Section 2511, the court must engage in a bifurcated
           process prior to terminating parental rights. Initially,
           the focus is on the conduct of the parent. The party
           seeking termination must prove by clear and
           convincing evidence that the parent’s conduct
           satisfies the statutory grounds for termination
           delineated in Section 2511(a). Only if the court
           determines that the parent’s conduct warrants
           termination of his or her parental rights does the
           court engage in the second part of the analysis
           pursuant to Section 2511(b): determination of the
           needs and welfare of the child under the standard of
           best interests of the child. One major aspect of the
           needs and welfare analysis concerns the nature and
           status of the emotional bond between parent and
           child, with close attention paid to the effect on the
           child of permanently severing any such bond.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007), citing 23 Pa.C.S.A. § 2511.

The burden is upon the petitioner to prove by clear and convincing evidence

that the asserted statutory 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., quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super. 2003).

     Here, the trial court terminated Father’s parental rights pursuant to

Section 2511(a)(2), (5), and (b), which provide as follows:




                                    -7-
J. S69017/15


          § 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:

                ....

                (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.

                ....

                (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.

                ....



                                   -8-
J. S69017/15


            (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(a)(2), (5), and (b).         We need only find sufficient

grounds under any one subsection of Section 2511(a) in order to affirm the

trial court’s decision to terminate parental rights.     In re T.M.T., 64 A.3d

1119 (Pa.Super. 2013).

      In his brief on appeal, Father argues that CYS presented insufficient

evidence to sustain its burden under Section 2511(a) and (b), and thus, that

the trial court abused its discretion in involuntarily terminating his parental

rights to Child. Specifically, Father contends that the evidence adduced fails

to establish that he is incapable of or refuses to remedy the conditions which

led to Child’s placement -- namely, his drug use and intellectual deficiencies.

Father avers that he is actively seeking treatment and counseling for his

substance abuse issues while incarcerated and asserts that this renewed

commitment to sobriety in conjunction with services and assistance on the




                                      -9-
J. S69017/15


part of CYS will make it possible for him to raise Child in spite of his

intellectual deficiencies. (Father’s brief at 11-12.) We disagree.

      To satisfy the requirements of Section 2511(a)(5), the moving party

must produce clear and convincing evidence regarding the following

elements: (1) the child has been removed from parental care for at least

six months; (2) the conditions which led to the child’s removal or placement

continue to exist; (3) the parents cannot or will not remedy the conditions

which led to removal or placement within a reasonable period of time;

(4) the services reasonably available to the parents are unlikely to remedy

the conditions which led to removal or placement within a reasonable period

of time; and (5) termination of parental rights would best serve the needs

and welfare of the child. See In re Adoption of M.E.P., 825 A.2d 1266,

1273-74 (Pa.Super. 2003).

      In its Rule 1925(a) opinion, the trial court explained its analysis under

Section 2511(a)(5) as follows:

                    [Child] has been removed from the care of her
            parents for a period of a[t] least six months. . . .
            [Child] was involuntarily removed from her Mother
            and Father because of their drug use and intellectual
            disabilities.    These conditions continue to exist
            because[,] based on testimony, Father has been
            unable to maintain sobriety and has a high risk of
            relapse. . . . Father cannot or will not remedy his
            addiction within a reasonable period of time.
            Presently, Father is incarcerated and has been since
            January 26, 2015. His release date is scheduled for
            March 25, 2016. Father’s goal, once he is released,
            is to check himself into a six to nine month rehab
            facility. By the time Father completes his seventh


                                    - 10 -
J. S69017/15


          attempt at rehabilitation, [Child] will be two (2)
          years old. This of course would be Father’s best case
          scenario. Father has already gone to rehab six (6)
          times, all of which have been unsuccessful. [The
          trial court] took into consideration the chances of
          another unsuccessful attempt at rehabilitation
          because the psychologist in this case explained how
          Father has a high risk of relapse. Taking everything
          into consideration, the chances of [Child] remaining
          in foster care even longer than Father’s expected
          goal [are] high.

                 The services or assistance reasonably available
          to Father are not likely to remedy the conditions
          which led to the removal of [Child] within a
          reasonable period of time.             According to a
          case-worker, Father has not cooperated with any of
          the services made available to him. Specifically, in
          regards to his addiction, Father has refused to take
          requested drug screens and failed to follow-up with
          intensive outpatient rehab. . . . The termination of
          Father’s parental rights would best serve the needs
          and welfare of [Child]. Based on the psychologist’s
          observations during her December 2014 and January
          2015 evaluations, Father is unable to care for [Child]
          independently and has been unable to demonstrate
          care, concern or bonding with [Child]. For instance,
          the psychologist noted that: (a) Father has a second
          grade reading level; (b) Father has an extensive
          history of substance abuse and has failed to comply
          with     treatment;     (c)    Father    has    unstable
          relationships; (d) Father has hepatitis C but does not
          follow through with any of the medical treatment[;]
          (e) Father is financially irresponsible, which results in
          his need for assistance in daily living; (f) Father has
          a high risk of relapse for drug and alcohol abuse
          because he has demonstrated poor coping skills and
          admitted to the fact that he likes his opiates; and
          (g) Father has been unable to sustain an interest in
          visiting with [Child] despite not working and having
          access to transportation.

                Therefore, [CYS] has produced clear and
          convincing evidence that the parental rights of


                                   - 11 -
J. S69017/15


            Father     should          be       terminated    under
            [Section 2511(a)(5)].

Trial court opinion, 7/31/15 at 3-5.

      After a careful review of the record, the trial court’s opinion, the briefs

on appeal, and the relevant law, we conclude that the trial court’s findings

are supported by clear and convincing, competent, and sufficient evidence,

and that it reasonably concluded that the elements of Section 2511(a)(5)

were met by the facts before it. We discern no abuse of discretion or error

of law on this issue.

      Having determined that the requirements of Section 2511(a) are

satisfied, we proceed to review whether the trial court properly found that

termination of Father’s parental rights was in the best interest of Child under

Section 2511(b). With respect to Section 2511(b), this court has explained

the requisite analysis as follows:

                   Subsection 2511(b) focuses on whether
            termination of parental rights would best serve the
            developmental, physical, and emotional needs and
            welfare of the child. In In re C.M.S., 884 A.2d
            1284, 1287 (Pa.Super. 2005), this Court stated,
            “Intangibles such as love, comfort, security, and
            stability are involved in the inquiry into the needs
            and welfare of the child.” In addition, we instructed
            that 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. However, in cases where
            there is no evidence of a bond between a parent and
            child, it is reasonable to infer that no bond exists.
            In re K.Z.S., 946 A.2d [753, 762-63 (Pa.Super.
            2008)]. Accordingly, the extent of the bond-effect



                                       - 12 -
J. S69017/15


            analysis necessarily depends on the circumstances of
            the particular case. Id. at 763.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010).

      In its Rule 1925(a) opinion, the trial court explained its analysis under

Section 2511(b) as follows:

                  Based upon the evidence and testimony
            presented, [the trial court] found that it was in the
            best interest of [Child] to terminate the parental
            rights of Father. Father testified that he has failed to
            care for [Child] because of his addiction and
            incarceration.     Father’s addiction and current
            incarceration does not excuse his failure to perform
            parental duties. Since [Child] was born, Father was
            offered the opportunity to visit with [Child] Monday
            through Friday for five (5) hours at a time. This
            provided Father with ample opportunities to form a
            bond with [Child], however, he chose either to leave
            early or not show up at all. Terminating Father’s
            parental rights would have no effect on [Child]
            because the bond between Father and [Child] is
            nonexistent. [Child] has found stability and security
            with a foster family. [Child] d[e]serves to remain in
            a stable and secure environment.

Trial court opinion, 7/31/15 at 6.

      Here, our review of the record indicates that there is clear and

convincing, competent, and sufficient evidence to support the trial court’s

decision that termination of Father’s parental rights best serves Child’s

developmental, physical, and emotional needs and welfare. Although Father

has expressed a willingness to fulfill his parental duties regarding Child’s

needs and welfare, his overall lack of progress towards alleviating the

circumstances which necessitated Child’s placement in the first place is



                                     - 13 -
J. S69017/15


illustrative of his inability to do so. As such, we find that it was appropriate

for the trial court to determine that the termination of Father’s parental

rights would not have a detrimental effect on Child and would be in Child’s

best interest.    In consideration of these circumstances and our careful

review of the record, we conclude that the trial court did not abuse its

discretion or commit an error of law in finding competent evidence to

support   the    termination   of   Father’s    parental   rights   to   Child   under

Section 2511(b).

      Accordingly, for the reasons stated above, we affirm the trial court’s

decree involuntarily terminating Father’s parental rights to Child pursuant to

23 Pa.C.S.A. § 2511(a)(5) and (b).

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/26/2016




                                       - 14 -
