J-S92028-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M., A MINOR             1   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: L.M., FATHER

                                                     No. 1041 WDA 2016


                     Appeal from the Order June 13, 2016
              In the Court of Common Pleas of Beaver County
     Juvenile Division at No(s): CP -4 -DP- 0000047 -2015, NO. 117 -2015


BEFORE:     SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                         FILED JANUARY 17, 2017

      L.M. ( "Father ") appeals from the June 13, 2016 decree entered in the

Beaver County Court of Common Pleas terminating his parental rights to

A.M. ( "Child "), born in May 2013. We affirm.

      Since shortly after Child's birth, Children and Youth Services ( "CYS ")

had an active case regarding Child due to Mother's addiction to Vicodin and

Father's homelessness.     On May 29, 2014, CYS filed an emergency motion

for protective custody of Child in Allegheny County. On May 30, 2014, Child

was ordered to remain at the Families United ( "FUN ") foster home, and on

June 2, 2014, Child was adjudicated dependent as to Mother.           Because




      *   Retired Senior Judge assigned to the Superior Court.
J-S92028-16



neither parent was capable of caring for Child, Child was placed with

Mother's aunt, M.E., and her partner, K.V.

     At the June         16,   2014     dependency   hearing,       Father,    who was

represented   by counsel,      failed   to appear,   and    Child    was      adjudicated

dependent as to Father.' The trial court found that Father's criminal history

included 10 years' incarceration for involuntary deviate sexual intercourse

and corruption of   a   minor. Father was classified as     a   Megan's Law offender

and was required to attend sexual offender treatment to properly care for

Child. Furthermore, the trial court found that Father had tested positive for

tetrahydrocannabinol     ( "THC ") on   June 2, 2014.      At the conclusion of the

hearing, the trial court ordered Father to: become clean and sober; attend              a

drug and alcohol evaluation and recommended treatment and screenings;

attend supervised visitations with Child once per week; attend sexual

offender treatment; and obtain safe and appropriate housing.

     At the October 27, 2014 permanency review hearing, the trial court

found that Father had voluntarily reduced his visits with Child to one hour

per week, continued to refuse sexual offender treatment, and tested positive

for THC. The next hearing was held on January 16, 2015, which Father did

not attend. The trial court found no compliance with the permanency plan



     ' Although generally      child is adjudicated dependent as to both
                                a
parents at the same hearing, the trial court adjudicated child dependent as
to Mother on June 2, 2014 based on a stipulation and deferred Father's
contested adjudicatory hearing until June 16, 2014.


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and found that Father had not attended visits with Child since November 24,

2014.    The next hearing was on April 10, 2015, which Father did attend.

The trial court again found no compliance and asked Father why he was not

addressing his goals. Father responded that he had "no time to run around."

        On August 24, 2015, the case was transferred to Beaver County

because Mother had moved.           On October 13, 2015, a permanency review

hearing was held, which Father did not attend. Because Mother was making

progress, the trial court reunified Child and Mother on this date. Three other

permanency review hearings were held, none of which Father attended. On

April 4, 2016, CYS filed   a   motion requesting Child be returned to foster care,

because Mother had relapsed to drug and alcohol abuse, struggled with

mental health issues, and was homeless. The trial court granted the motion.

        On May 3, 2016, the      trial court held   a   permanency review and goal

change hearing.    This was the first hearing in Beaver County that Father

attended.   The trial court explained to Father that the matter was urgent

because Child had been in placement for 17 of the last 22 months. The trial

court continued the case until June 13, 2016 so that Father had time to

complete his parenting evaluation and obtain             a   lawyer.   At the June 13,

2016 hearing, the trial court made the following findings:

          Father was provided the family service plan from Beaver
          County in February 2016. [It was substantially the same
          plan as the plan from Allegheny County.] He was informed
          numerous times of his right to counsel, but never
          completed an application to have a lawyer appointed until
          May 2016, the first time he appeared in court. From the
          inception of the case, both in Allegheny and Beaver

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       County, Father resisted any involvement from CYS, and
       refused to attend any evaluations or services.
       Among the tasks Father was to complete in the Family
       Service Plan were a parenting evaluation and sexual
       offender treatment. The parenting evaluation was part of
       the Family Service Plan since August 2015. Father never
       attended the evaluation and the initial referral was closed.
       The referral for a parenting evaluation was made again in
       May 2016, and the evaluation was scheduled for Father on
       two separate occasions. The case worker attributed the
       first missed appointment to a miscommunication, because
       when she went to pick up Father following the visit with
       the child, he was not there.         He had gone home.
       Apparently, he claimed that he did not know whether he
       had a ride to the appointment, although the parenting
       evaluator confirmed with him the day before that she
       would be seeing him.        The second appointment was
       cancelled because Father overslept. The appointment was
       scheduled for 12:30 p.m. and he was to be picked up in
       Monaca at 12:15 p.m. Father never called CYS or the
       evaluator to explain why he wasn't there on time.
       Parenting evaluations can take months to schedule. In
       this case, accommodations were made for Father to have
       two opportunities, in a very quick timeframe, to be able to
       complete the evaluation prior to the hearing, and he
       missed them both.
       It was expected that the parenting evaluation would reveal
       other services that might be necessary for the parents to
       complete. It is a well- rounded evaluation that talks about
       how the parent was raised as a child, marital history, drug
       and alcohol use[,] me[n]tal health, criminal history, etc.
       At the time of the hearing, however, Father still had not
       completed the parenting evaluation.
       Father was offered eight visits with [Child] since the last
       time he appeared in court on May 3, 2016. He missed five
       visits and attended three.
       Father claimed that he was not involved with the minor
       throughout the case because he was homeless for several
       months. Father was homeless for approximately the first 9
       months of this case, at which time he lived in his car.
       However, he admitted that he was back on his feet for the

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J-S92028-16


           past year, and still did not visit regularly or attend
           services. He has never had [Child] in his care, and for the
           past year, at least, has not had her at his home, even for a
           visit, unless Mother took her there during the brief period
           of reunification.
See 1925(a) Opinion, 9/1/16, at              5 -7    ( "1925(a)       Op. ")   (unpaginated)

(internal citations and footnotes omitted).

      On July 13, 2016, Father        timely filed   a   notice of appeal. Father raises

the following issue:

           Whether the trial court abused its discretion and /or erred
           as a matter of law in determining that the agency, [CYS],
           established by clear and convincing evidence that the
           parental rights of [Father] should be terminated pursuant
           to 23 Pa.C.S.A. § 2511?

Father's Br. at 4.

      We review a trial court's order terminating parental rights for an abuse

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

abuse of discretion "does not result merely because the reviewing court

might have reached         a   different conclusion.       Instead,    a   decision may be

reversed for an abuse of discretion only upon demonstration of manifest

unreasonableness, partiality, prejudice, bias, or ill- will."                  Id.     (internal

citations omitted).

      The      Pennsylvania     Supreme Court has explained the                      reason for

applying   a   particularly deferential standard to termination decisions:

           [U]nlike 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. Therefore, even

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J-S92028-16


          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.
Id. at 826 -27 (internal citations omitted). At the same time, "[t]he burden
of proof is on the party seeking termination to establish by clear and

convincing evidence the existence of grounds for doing so." In re           Z.P.,   994

A.2d 1108, 1116 (Pa.Super. 2010).

       Termination of parental rights       is   governed by section 2511 of the

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

       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) (citations omitted).

       The trial court found two grounds for termination of Father's parental

rights, 23 Pa.C.S. §§ 2511(a)(2) and (8).           However, we need only agree

with the trial court's determination as to one subsection of section 2511(a)

in   order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)              (en



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banc).     Thus, we will analyze the trial court's decision to terminate under

section 2511(a)(2), which provides:

           (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.
23 Pa.C.S. §§ 2511(a)(2). To terminate parental rights pursuant to section

2511(a)(2),

           the following three elements must be met: (1) repeated
           and continued incapacity, abuse, neglect or refusal; (2)
           such incapacity, abuse, neglect or refusal has caused the
           child to be without essential parental care, control or
           subsistence necessary for [her] 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 C.D.R.,     111 A.3d 1212, 1216 (Pa.Super. 2015) (quoting

In re Adoption of M.E.P.,     825 A.2d 1266, 1272 (Pa.Super. 2003)).

         Father contends   that   CYS   did       not present clear and convincing

evidence to meet the elements for section 2511(a)(2).               Father's Br. at 9.

Father does not dispute that he failed to comply with the Family Service

Plan; rather, he argues that he is       now willing to comply.          Id. at   9 -10.

Father maintains that his failure to attend scheduled supervised visits was

based on travel demands occasioned by the distance he lived from the

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visitation site. Id. at 10.      He   further suggests that Child could live           in his

home with his two other children.         Id. Finally, Father maintains that            CYS

has not proven that he is unwilling to remedy his neglect.               Id.
      In its opinion, the trial court set forth its reasoning for finding grounds

for termination under section 2511(a)(2):

         [F]rom the inception of this case         .Father outright
                                                       .    .


         refused to attend sexual offenders' treatment. He believed
         the treatment was irrelevant and that he did not need to
         attend. He was informed at the time of the adjudication
         hearing, in June 2014, that his treatment was necessary.
         As of the final hearing on June 13, 2016, two years later,
         he had not begun treatment. His refusal to follow the
         family service plan has left [Child] without essential
         parental control necessary for her well- being. The court
         cannot place this child with Father, who has a conviction
         for involuntary deviant sexual intercourse with a minor,
         before he completes this treatment. For more than two
         years, the cause of the neglect or refusal to attend
         treatment was not be [sic] remedied by Father, and the
         court has no indication, other than Father's last minute
         promise to attend, that he will ever complete the
         treatment for necessary reunification.
1925(a) Op. at 8 -9 (internal citation omitted).           In addition, Father failed to

attend the parenting evaluation, even though it was scheduled on more than

one occasion and he was provided transportation.                Id. at   5 -6.   We conclude

that the trial court did not abuse its discretion when it found that section

2511(a)(2) warrants termination of Father's parental             rights.2




     2 We acknowledge that distance was an issue for Father; however, that

was merely one factor in the trial court's determination. In terminating
(Footnote Continued Next Page)


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      We next turn to section 2511(b), which we have described as follows:

      Section 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. As this Court has
      explained, Section 2511(b) does not explicitly require a bonding
      analysis and the term 'bond' is not defined in the Adoption Act.
      Case law, however, provides that analysis of the emotional bond,
      if any, between parent and child is a factor to be considered as
      part of our analysis. While a parent's emotional bond with his or
      her child is a major aspect of the subsection 2511(b) best -
      interest analysis, it is nonetheless only one of many factors to be
      considered by the court when determining what is in the best
      interest of the child.
             [I]n addition to   bond examination, the trial court
                                a
             can equally emphasize the safety needs of the child,
             and should also consider the intangibles, such as the
             love, comfort, security, and stability the child might
             have with the foster parent. Additionally, this Court
             stated that the trial court should consider the
             importance of continuity of relationships and whether
             any existing parent -child bond can be severed
             without detrimental effects on the child.
C.D.R., 111 A.3d at 1219 (quoting         In re N.A.M.,     33 A.3d    95, 103

(Pa.Super. 2011)) (citations and internal quotations omitted).

      Father claims that CYS failed to present clear and convincing evidence

regarding the emotional bond between Father and Child and the effect of

permanently severing the parental bond.      Father's Br. at 11.   Father states

that he did not obtain counsel until May 2016 and did not have adequate

time to review his case with counsel prior to the termination hearing.       Id.


(Footnote Continued)

Father's parental rights, the trial court focused primarily on Father's failure
to complete the parenting evaluation and the sexual offender treatment.


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J-S92028-16



Father contends that after consulting with counsel, he made                 a   reasonable

request for time to comply with CYS and the Family Service Plan.                Id.
       The trial court considered the developmental, physical, and emotional

needs and welfare of the child. The trial court found that it could not entrust

Child with Father without the required evaluation and treatment.                    1925(a)

Op. at 10.    It further stated that Father     had not been involved in Child's life

and resisted any services for two years.             Id.   The trial court found that it

was not in Child's best interest to remain without            a    permanent home, that

Father had neglected his parental duties, and that termination of parental

rights was appropriate to serve the needs of Child and provide permanency.

Id.   at 9 -10; Involuntary Termination of Parental Rights Decree, 6/13/16.

        Contrary to Father's contentions, the trial court did consider the effect

on severing the parental      bond, if any existed.               The trial court stated,

"[Father] has done very little to foster [a] relationship.                From the very

beginning of the case, he voluntarily reduced his visits to once                a   week for

one hour."       1925(a) Op. at 7.     The trial court went on to explain how

Father's constant refusal to attend the parenting evaluation and sexual

offender treatment indicated he was not taking the necessary steps for Child

to be placed in his care.     Id.   at 9 -10.       Finally, the trial court stated that

"[Father's] bond with his daughter       is   not    a   strong one, due to his lack of

visits. Severing the bond at this point will not have          a   negative impact on the

child." Id. at   7.




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       As the trial court observed, Father had multiple opportunities to retain

counsel and chose to wait until May of 2016 to do so. His conscious decision

not to complete the parenting evaluation or sexual offender treatment for

two years led to the termination of his parental rights. Father argues that all

he is asking for is one   opportunity to remain        in his   daughter's life, Father's

Br.   at 12, but he fails to acknowledge that he has been given, and

squandered, many such opportunities. "[A] parent's vow to cooperate, after

a   long period of uncooperativeness regarding the necessity of availability of

services, may properly be rejected as untimely or disingenuous."                  In re
A.L.D.,   797 A.2d 326, 340 (Pa.Super. 2002).           Child has been in placement

for most of her life, and we agree with the trial court that she should not be

left to linger until Father decides that this time he will truly comply.           Child

deserves permanency in         a   family that can provide her with the care and

attention she needs.

       We conclude the trial court did not abuse its discretion in finding

termination    of   Father's       parental   rights   would       best   serve   Child's

developmental, physical, and emotional needs and welfare.

       Decree affirmed.
J-S92028-16


Judgment Entered.




J   seph D. Seletyn,
Prothonotary


Date: 1/17/2017




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