J-S06018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: INVOLUNTARY TERMINATION OF              IN THE SUPERIOR COURT OF
PARENTAL RIGHTS TO D.V.M.R.                          PENNSYLVANIA




APPEAL OF: G.R., FATHER

                                                    No. 1266 MDA 2015


                  Appeal from the Order Entered June 22, 2015
                 In the Court of Common Pleas of Centre County
                       Orphans' Court at No(s): 3956-2014


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                            FILED MARCH 04, 2016

       Appellant, G.R. (Father) appeals from the June 22, 2015 order

involuntarily terminating his parental rights to his minor son, D.V.M.R., born

in March 2011.1 After careful review, we affirm.2

       The orphans’ court summarized the factual history of this matter as

follows.

                   [Centre County Children and Youth Services
              (CYS)] was involved with [Mother] and [Father]
              concerning their older son, [N.R.]. [N.R.] was
____________________________________________


1
 The parental rights of D.V.M.R.’s mother, L.W. (Mother), were terminated
by the same order. The disposition of Mother’s appeal is by separate
memorandum at docket number 1258 MDA 2015.
2
  The Guardian Ad Litem has filed a brief in support of the involuntary
termination decree.



*Former Justice specially assigned to the Superior Court.
J-S06018-16


           adjudicated dependent in October, 2009. [Father]
           was incarcerated at the time [N.R.] was found
           dependent.     Family Intervention Cris[i]s Services
           (FICS) was contacted to take reunification steps with
           [N.R.] and the efforts began with [Mother] in
           November, 2009 and for [Father] in March, 2010,
           when he was released from Blair County Correctional
           Facility. The reunification efforts were not successful
           as [Mother] had no housing, did not participate in
           lifestyle checks with FICS, and did not schedule
           sessions with reunification counselors. In August,
           2010, there was no progress in reunification and on
           December 30, 2010, reunification services ended as
           the parents failed to meet the required goals.

                  When [D.V.M.R.] was born in March, 2011,
           new services were provided by FICS since [D.V.M.R.]
           was in the home with the parents and reunification
           efforts were again commenced for [N.R.]. There was
           progress toward reunification and things went
           relatively well. The reunification efforts ended when
           [Mother] was incarcerated in December, 2011.
           [Father] had a warrant out for his arrest at that time
           and his whereabouts were unknown. [Mother] was
           to be incarcerated until February, 2014, and [Father]
           was incarcerated through September, 2012.

Orphans’ Court Opinion, 6/22/15, at 2.

     On March 10, 2014, CYS filed a petition to involuntarily terminate the

parental rights of Father and Mother.     Termination hearings were held on

June 9, 2014, July 30, 2014, and October 31, 2014, during which the

orphans’ court heard the testimony of former CYS caseworker, Lindsay

Schreffler; D.V.M.R.’s foster father, J.F. (Foster Father); D.V.M.R.’s foster

mother, M.J.F. (Foster Mother); CYS caseworker, Tammi Eddy; Mother’s

maternal   aunt,   M.M.-K.;   Mother;    Father’s   mother,   P.K.   (Paternal

Grandmother); and Father.     On November 24, 2014, before the orphans’

                                    -2-
J-S06018-16


court ruled on the termination petition, CYS filed a petition to reopen the

record in order to present new evidence concerning ongoing drug use by

Mother. The orphans’ court granted the petition, and additional testimony

was heard on January 2, 2015.      Specifically, the orphans’ court heard the

testimony of psychiatrist, Elmer Cupino, M.D.; and CYS caseworker, Brittany

Werner.

      On June 22, 2015, the orphans’ court entered its order involuntarily

terminating Father’s parental rights to D.V.M.R. Father timely filed a notice

of appeal on July 22, 2015, along with a concise statement of errors

complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(a)(2)(i). The orphans’ court has adopted its June 22, 2015

opinion for purposes of Rule 1925(a).

      Father now raises the following issues for our review.

            I. Did the [orphans’] court err in finding clear and
            convincing evidence to justify termination pursuant
            to either 23 Pa. C.S.A. § 2511(a)(2), (a)(5), or
            (a)(8)?

            II. Did the [orphans’] court err in concluding that
            termination would best serve the needs and welfare
            of the child, more specifically did the [orphans’]
            court err in failing to give adequate consideration to
            the bond between siblings and the impact of
            termination on the bond between the minor child and
            his natural father?

Father’s Brief at 4 (unnecessary capitalization omitted).

      We consider Father’s claims mindful of our well-settled standard of

review.

                                     -3-
J-S06018-16


            The standard of review in termination of parental
            rights cases requires appellate courts to accept the
            findings of fact and credibility determinations of the
            trial court if they are supported by the record. If the
            factual findings are supported, appellate courts
            review to determine if the trial court made an error
            of law or abused its discretion. A decision may be
            reversed for an abuse of discretion only upon
            demonstration       of   manifest      unreasonableness,
            partiality, prejudice, bias, or ill-will. The trial court’s
            decision, however, should not be reversed merely
            because the record would support a different result.
            We have previously emphasized our deference to
            trial courts that often have first-hand observations of
            the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, 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).


                                       -4-
J-S06018-16


     In this case, the orphans’ court terminated Father’s parental rights

pursuant to Sections 2511(a)(2), (5), (8), and (b). We need only agree with

the orphans’ court as to any one subsection of Section 2511(a), as well as

Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.

Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here,

we analyze the orphans’ court’s decision to terminate under Sections

2511(a)(2) and (b), which 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:

                                     …

                 (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.

                                     …

           (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

                                   -5-
J-S06018-16


            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), (b).

      We first address whether the orphans’ court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(a)(2).        “The

grounds for termination 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) (citations omitted). “[A]

parent’s incarceration is relevant to the section (a)(2) analysis and,

depending on the circumstances of the case, it may be dispositive of a

parent’s ability to provide the ‘essential parental care, control or subsistence’

that the section contemplates.” In re A.D., 93 A.3d 888, 897 (Pa. Super.

2014), quoting In re Adoption of S.P., 47 A.3d 817 (Pa. 2012).

      Instantly, the orphans’ court found that Father has engaged in a

“repeated pattern of criminal activity” which has caused D.V.M.R. to be

without essential parental care.    Orphans’ Court Opinion, 6/22/15, at 10.

The orphans’ court further found that Father is unable to remedy this issue.

Id. Father argues that he has remedied the situation which prevented him

from caring for D.V.M.R., in that he is no longer incarcerated. Father’s Brief

at 15. Father also contends that it was improper to terminate his parental




                                      -6-
J-S06018-16


rights because he never was offered reunification services with respect to

D.V.M.R. Id.

        After a thorough review of the record in this matter, we conclude that

the orphans’ court did not abuse its discretion by involuntarily terminating

Father’s parental rights to D.V.M.R.           During the termination hearing, CYS

caseworker, Tammi Eddy, testified that she was assigned to this matter in

October of 2013.       N.T., 6/9/14 (Part 2), at 113.       Ms. Eddy believed that

Father was released from incarceration in Centre County on January 20,

2012.    Id. at 76.     However, she noted that, “my understanding from the

agency record is that he was on a detainer to Blair County at that point too.”

Id.   Ms. Eddy did not have the dates of Father’s incarceration in Blair

County, but she provided several additional dates during which Father was

incarcerated in Centre County. Id. at 76-77. Father was incarcerated at the

Centre County Correctional Facility from March 15, 2012, until March 20,

2012; from April 2, 2012, until April 3, 2012; from May 21, 2012, until May

23, 2012; from June 1, 2012, until June 29, 2012; from August 20, 2012,

until August 21, 2012, and from October 21, 2013, until November 4, 2013.3
____________________________________________


3
  Counsel for Father indicated that Father was incarcerated in Blair County
for an unspecified period of time, and that several of these dates represent
“transportation from Blair County where he is in Centre County for a day[.]”
N.T., 6/9/14 (Part 2), at 77. Ms. Eddy stated that Father’s most recent
period of incarceration resulted from a “Domestic Relations incident.” Id. at
78. Ms. Eddy reported that, as of October of 2013, Father owed in excess of
$18,000 in child support. Id. at 81.



                                           -7-
J-S06018-16


Id. at 76-78. Ms. Eddy stated that Father currently is facing charges due to

an incident which took place on December 26, 2012. Id. at 78. Ms. Eddy

specified that Father was charged with “driving while driving privileges

suspended, period for required lighted lamps, and habitual offenders[.]” Id.

     Father admitted that he has a history of criminal convictions dating

back to 1992. N.T., 10/31/14, at 47. Specifically, Father had convictions in

1992, 2003, 2004, 2006, 2007, and 2008, including three convictions for

driving under the influence. Id. at 47-49, 51. Father explained that he was

incarcerated on December 13, 2011, due to either a receiving stolen

property charge, or because he violated his probation. Id. at 28, 66. Father

believed that he was released from incarceration in approximately August or

September of 2012.     Id. at 39, 61, 66.   Father stated that he again was

incarcerated in the fall of 2013 “for contempt of D.V.M.R. support.” Id. at

26-27.   With respect to his current criminal charges, Father indicated that

his conviction is on appeal. Id. at 46. Father admitted that, if his judgment

of sentence is affirmed, he will be incarcerated for a minimum of sixty days

and a maximum of twenty-three months. Id.

     Accordingly, the record supports the conclusion of the orphans’ court

that Father is incapable of providing D.V.M.R. with essential parental care,

control, or subsistence necessary for D.V.M.R.’s physical or mental well-

being.   Moreover, Father cannot, or will not, remedy his parental incapacity.

Father has an extensive criminal history, which has resulted in two periods


                                     -8-
J-S06018-16


of incarceration during D.V.M.R.’s life.         At the time Father testified during

the termination hearing, he was facing yet another possible incarceration. 4

Father has proven that he is either unwilling or incapable of curbing his

criminal tendencies, and it was proper for the orphans’ court to conclude

that D.V.M.R. should no longer be denied permanency.5 In re Adoption of

M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003) (“[a] child’s life simply

cannot be put on hold in the hope that the parent will summon the ability to

handle the responsibilities of parenting[]”) (citations omitted).

       Additionally, we reject Father’s contention that his parental rights

should not have been terminated because CYS failed to provide him with

reunification services with respect to D.V.M.R. Our Supreme Court recently

held that reasonable reunification efforts are not necessary to support a

decree terminating parental rights pursuant to Section 2511(a)(2). We have

discussed the Court’s decision as follows.

              In In re D.C.D., ___ Pa. ___, 105 A.3d 662 (2014),
              our Supreme Court analyzed the language of Section
              2511(a)(2) of the Adoption Act, as well as Section
              6351 of the Juvenile Act, 42 Pa.C.S.A. § 6351. The
              Court reasoned that, while “reasonable efforts may
____________________________________________


4
 This Court affirmed Father’s judgment of sentence on December 19, 2014,
and our Supreme Court denied allocatur on June 11, 2015.
5
  In his brief, Father appears to indicate that incarceration cannot be “the
sole basis” for terminating a person’s parental rights. Father’s Brief at 15.
As noted supra, our Supreme Court has held that incarceration may be
“dispositive of a parent’s ability to provide [] ‘essential parental care, control
or subsistence’ ….” See A.D., supra at 897.



                                           -9-
J-S06018-16


            be relevant to a court’s consideration of both the
            grounds for termination and the best interests of the
            child,” neither of these provisions, when read
            together or individually, requires reasonable efforts.
            The Court also concluded that reasonable efforts
            were not required to protect a parent’s constitutional
            right to the care, custody, and control of his or her
            child….

In re Adoption of C.J.P., 114 A.3d 1046, 1055 (Pa. Super. 2015) (some

citations omitted). Thus, Father is not entitled to relief.

      We next consider whether the trial court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(b). We have

discussed our analysis under Section 2511(b) 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 a bond examination, the trial
                  court 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


                                     - 10 -
J-S06018-16


                  severed without detrimental effects on the
                  child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015), quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and

citations omitted).

      Here, the orphans’ court found that terminating the parental rights of

Father and Mother would best serve the needs and welfare of D.V.M.R.

Orphans’ Court Opinion, 6/22/15, at 10-11.     The orphans’ court explained

that it considered the bond between D.V.M.R. and his parents, and

concluded that D.V.M.R. would not suffer emotionally if parental rights are

terminated. Id. at 10. The orphans’ court observed that D.V.M.R. shared a

stronger bond with his foster parents. Id. Finally, the orphans’ court noted

that it would be best for D.V.M.R. to continue residing with his foster

parents, even though this will prevent D.V.M.R. from residing with his

brother N.R. Id. at 11. The orphans’ court expressed hope that D.V.M.R.’s

foster parents would work with N.R.’s foster parents, and with CYS, to foster

a relationship between D.V.M.R. and N.R. Id.

      Father argues that it was improper to terminate Father’s parental

rights because the orphans’ court failed to discuss the harm that may befall

D.V.M.R. if his bond with N.R. is severed. Father’s Brief at 17-19. Father

contends that the orphans’ court also failed to provide a “substantive

evaluation” of the bond between D.V.M.R. and Father.      Id. at 20.   Father




                                   - 11 -
J-S06018-16


insists that a bonding evaluation should have been conducted with respect to

D.V.M.R. and N.R., and with respect to D.V.M.R. and Father. Id. at 19-20.

       We again discern no abuse of discretion. Ms. Eddy testified that she

did not believe that D.V.M.R. would suffer emotional harm if the parental

rights of Father and Mother are terminated. N.T., 6/9/14 (Part 2), at 100.

Ms. Eddy explained that she has attended approximately four visits between

D.V.M.R. and his parents.           Id. at 116-17.       In addition, Ms. Eddy has

transported D.V.M.R. back from visits.             Id. at 95-96.   While being driven

back after a visit, D.V.M.R. frequently asks when they are going to be home,

and says, “I want Mommy [J.], I want my mommy,” meaning Foster Mother.

Id. at 96.     In contrast, Ms. Eddy described an incident during which she

arrived at the foster home, and D.V.M.R. mistakenly believed that she was

there to take him to a visit with his parents.            Id. at 96.   D.V.M.R. “ran

upstairs screaming [‘]I don’t want to go, I don’t want to go.[’]             He then

started throwing books at the [foster parents’] daughter.”6 Id. at 96-97.

       Concerning D.V.M.R.’s bond with his brother N.R., Foster Mother

testified that D.V.M.R. and N.R. initially were placed together in her home.

Id. at 39-40. However, N.R. engaged in numerous inappropriate behaviors,

including acts of violence against D.V.M.R. Id. at 41-43. Foster Mother and

____________________________________________


6
  While describing this incident, Ms. Eddy used N.R.’s first name rather than
D.V.M.R.’s first name. However, it is clear from the context that she was
referring to D.V.M.R.



                                          - 12 -
J-S06018-16


Foster Father struggled to ensure D.V.M.R.’s safety, and Foster Mother called

CYS asking for assistance. Id. at 40, 42, 52. As a result, N.R. was sent to

be evaluated at a facility called Kids Peace.   Id. at 53-54.    During N.R.’s

time at Kids Peace, it was determined that N.R. should not reside with other

children.   Id. at 56.    Thus, N.R. was placed in the care of Paternal

Grandmother. Id. Foster Mother noted that N.R. was present during some

of D.V.M.R.’s visits with Mother and Father, and that D.V.M.R. is more willing

to attend visits if he knows N.R. will be there. Id. at 49-50, 61-62. Foster

Mother indicated that she would support D.V.M.R. and N.R. maintaining a

relationship, even after she and Foster Father adopt D.V.M.R. Id. at 62.

      Thus, the record supports the conclusion of the orphans’ court that it

would best serve D.V.M.R.’s needs and welfare to terminate Father’s

parental rights. D.V.M.R. was removed from Father’s care in December of

2011, when he was about nine months old. D.V.M.R. was placed with his

current foster parents in March of 2012, and has resided with them

continuously since that time. N.T., 6/9/14 (Part 1), at 34, 88. While Father

suggests that the orphans’ court should have procured a bonding evaluation,

it is well-settled that a court in a termination proceeding “is not required by

statute or precedent to order a formal bonding evaluation be performed by

an expert.” In re K.K.R.-S., 958 A.2d 529, 534 (Pa. Super. 2008) (citation

omitted). The orphans’ court was well within its discretion when it relied on




                                    - 13 -
J-S06018-16


the testimony of Ms. Eddy, among others, to conclude that D.V.M.R. would

not suffer emotional harm if Father’s parental rights are terminated.

       Moreover, it was proper for the orphans’ court to conclude that

D.V.M.R.’s relationship with N.R. should not prevent Father’s parental rights

from being terminated.        As Father admits, “the rule against separation of

siblings is not necessarily controlling in an involuntarily termination case.”

Father’s Brief at 17, citing In Re R.P., 956 A.2d 449 (Pa. Super. 2008).7

We agree with the orphans’ court that whatever bond the brothers share is

outweighed in the instant matter by other concerns, including D.V.M.R.’s

bond with his foster parents, D.V.M.R.’s need for permanence and stability,

and by Father’s repeated incarcerations.           As noted supra, Foster Mother
____________________________________________


7
  R.P. was a goal change case in which a panel of this Court considered
whether a trial court abused its discretion by separating R.P. and his sibling,
L.P. R.P., supra at 457-58. This Court held that Mother waived this claim
by failing to raise it before the trial court. Id. at 457. This Court further
noted that, even if this claim had properly been preserved, Mother’s
argument was specious, given that R.P. remained hospitalized at the time of
the permanency review hearing, and it was impossible to place him with L.P.
Id. at 457-58. Finally, the Court explained as follows.

       While a decision ultimately may be made to place the children
       together in the future, the general rule disfavoring separation of
       siblings … is not controlling as no absolute constitutional or
       statutory right to be raised with a sibling yet exists in our
       jurisprudence. The court, in any event, has discretion to place
       R.P. and L.P. according to the individual best interests of each
       child. The health, safety, and welfare of each child supersede all
       other considerations.

Id. at 458 (citations and quotation marks omitted).




                                          - 14 -
J-S06018-16


indicated during the termination hearing that she would support D.V.M.R.

and N.R maintaining a relationship, even after she has adopted D.V.M.R.8

       Based on the foregoing, we conclude that the orphans’ court did not

abuse its discretion by involuntarily terminating Father’s parental rights to

D.V.M.R.     See T.S.M., supra.         Accordingly, we affirm the June 22, 2015

order of the orphans’ court.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




____________________________________________


8
  Similarly, Foster Father stated, “I would make sure that those boys stayed
in contact with each other, seen [sic] each other. I have no problem with
them communicating with each other…. I assure you that … they will be in
contact with each other.” N.T., 6/9/14 (Part 2), at 26.



                                          - 15 -
