J-S37018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF E.S.T., A               :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.W., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 683 EDA 2018

              Appeal from the Decree Entered February 15, 2018
    In the Court of Common Pleas of Montgomery County Orphans' Court at
                           No(s): No. 2015-A0069


BEFORE:      OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JULY 11, 2018

       J.W. (“Father”) appeals from the decree terminating his parental rights

to E.S.T. (“Child”). We conclude the trial court did not abuse its discretion

when terminating Father’s parental rights and affirm.

       Child was born in January 2015 addicted to methadone, heroin and

Klonopin. Child has lived with L.T. since she left the hospital in February 2015.

On April 13, 2017, L.T. filed a Petition for Involuntary Termination of Parental

Rights of Father.1 On January 24, 2018, the trial court conducted a hearing on

the Petition.

       The trial court found the following facts:


____________________________________________


*    Former Justice specially assigned to the Superior Court.

1 That same day, Petitioner also filed a Petition to Confirm Consent of
Biological Mother, which the trial court granted on February 15, 2018.
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       [Child] has special needs. Since her birth, she has had five
       specialty therapists and she continues to receive early
       intervention screening due to her sensory-based delays.

       [Child] has a warm and loving relationship with [L.T.].
       [Child] relies on [L.T.] to meet her daily needs. [Child]
       shares a strong bond with [L.T.], as they have lived together
       in the only home [Child] has ever known. Because [Child] is
       very secure in the stability provided by [L.T.’s] care, she is
       thriving and flourishing in her current home.

       [Father] has never met [Child]. [Father] was incarcerated
       in December 2014 and he pled guilty to two misdemeanor
       charges on February 24, 2015. [Father] received a state
       sentence on June 3, 2015 that included sentencing for
       violating the terms of his probation on three other criminal
       charges. [Father] remains incarcerated at the time of the
       hearing, resulting from his June 3, 2015 sentencing. His
       maximum release date is in June 2019.

       [Father] also has an 11 year old son. [Father] has been in
       and out of jail for the last 12 years. During the last ten
       years, [Father] has spent eight years in jail. Prior to his
       recent incarceration, [Father] was released from state
       custody in April 2011 into a halfway house where he
       remained until December 2011. Six months later, [Father]
       was arrested again on June 8, 2012. While serving his
       current sentence, [Father] has incurred several infractions
       in prison that derail any opportunity for early release to
       assume his parenting responsibilities for [Child].

       During his current incarceration, [Father] did not seek the
       assistance of prison officials or his criminal attorneys to
       contact [Child]. Even though [L.T.] reached out to Paternal
       Grandmother as early as Fall 2015, Paternal Grandmother
       never relayed messages from [Father] to [Child]. Although
       [Father] never filed petitions seeking custody of [Child], he
       did write a letter inquiring about his parental status to the
       court and the Montgomery County, PA Office of Children and
       Youth, respectively.

       Despite receiving funds from [L.T.’s] mother, [Father] failed
       to send any gifts to [Child] from June 1, 2016 to June 1,
       2017. [Father] has provided no financial support for the care
       of [Child]. Instead, [Father] solicited funds from [L.T.’s]
       mother which he used to buy clothing for himself and make

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         phone calls from prison. For the most part, the calls made
         from prison were not about [Child]. [Father] never inquired
         about [Child’s] medical condition or her school records. He
         did, however, send [Child] a Christmas card and a birthday
         card.

         [Father] acknowledges that removing [Child] from her
         current home would be harmful and upsetting to [Child]. He
         has no plans for the care of [Child] upon his release from
         prison.

Trial Court Opinion, filed 2/15/18, at 2-4.

      On February 15, 2018, the trial court granted the Petition for Involuntary

Termination of Parental Rights of Father. Father filed a timely Notice of Appeal.

      On appeal, Father raises the following issues:

         1. Did the Honorable Trial Court commit error in terminating
         the parental rights of Father, pursuant to 23 Pa.C.S. §
         2511(a)(1), when the testimony at trial demonstrated that
         Father was essentially prevented from performing his
         parental duties while he has been incarcerated and at no
         point has evidenced a settled purpose of relinquishing his
         parental claim nor has he failed or refused to perform
         parental duties[?]

         2. Did the Honorable Trial Court commit error in terminating
         the parental rights of Father, pursuant to 23 Pa.C.S. §
         2511(a)(2), when the testimony at trial demonstrated that
         Father has tried at all relevant times to maintain a position
         of importance in the child’s life and is nearing the end of his
         prison sentence; accordingly the causes of any incapacity
         on the part of Father are in the process of being remedied?

         3. Did the Honorable Trial Court commit error by
         involuntarily terminating Father’s parental rights where the
         facts did not establish by clear and convincing evidence that
         such termination was in the best interests of the child as
         contemplated by 23 Pa.C.S. [§] 2511(B)?

Father’s Br. at 2 (unnecessary capitalization omitted).




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      When reviewing orders terminating parental rights, we must “accept the

findings of fact and credibility determinations of the trial court if they are

supported by the record.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (quoting

In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012)). Where “the factual

findings are supported,” we review the decision “to determine if the trial court

made an error of law or abused its discretion.” Id. (quoting In re Adoption

of S.P., 47 A.3d at 826). We defer “to trial courts that often have first-hand

observations of the parties spanning multiple hearings,” id., and will reverse

a decision “for an abuse of discretion only upon demonstration of manifest

unreasonableness, partiality, prejudice, bias, or ill-will,” id. (quoting In re

Adoption of S.P., 47 A.3d at 826). We will not reverse the trial court “merely

because the record would support a different result.” Id. (quoting In re

Adoption of S.P., 47 A.3d at 827).

      The Pennsylvania Supreme Court has explained the reason for applying

an abuse of discretion 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
         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.



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In re Adoption of S.P., 47 A.3d at 826-27 (citations omitted).

     To affirm the termination of parental rights, this Court need only agree

with the trial court’s determination as to any one subsection of Section

2511(a), in addition to its finding as to Section 2511(b). In re B.L.W., 843

A.2d 380, 384 (Pa.Super. 2004) (en banc). Here, we conclude that the trial

court properly terminated Father’s parental rights pursuant to Sections

2511(a)(2) and (b).

     We will first review the trial court’s conclusion that termination was

proper 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.A. § 2511(a)(2).

     To terminate parental rights pursuant to Section 2511(a)(2), the moving

party must produce clear and convincing evidence of the following: “(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 his physical or

mental well-being; and (3) the causes of the incapacity, abuse, neglect or


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refusal cannot or will not be remedied.” In re Adoption of M.E.P., 825 A.2d

1266, 1272 (Pa.Super. 2003). Further, the Pennsylvania Supreme Court has

held that:

         [I]ncarceration 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 that the causes of the incapacity
         cannot or will not be remedied.

In re Adoption of S.P., 47 A.3d at 828.

      The trial court concluded that L.T. proved by clear and convincing

evidence that Father’s incarceration created a repeated and continued

incapacity to parent that caused Child to be without the essential parental

care, control or subsistence necessary for her well-being. TCO, at 5. It noted

that Father would not be released from prison for at least another year and,

therefore, the conditions that created the incapacity would not be remedied.

Id. at 5-6. The trial court further reasoned that, although Father testified that

he would seek to remain drug and crime free after his release, “his repeated

incarcerations and, consequently, his failure to parent his 11[-]year[-]old son

casts considerable doubt upon his promises to attend [alcoholics anonymous

or narcotics anonymous] once he is released from prison.” Id. We conclude

that the record supports the trial court’s factual findings and it did not err or

abuse its discretion when it found that termination of Father’s parental rights

was proper under Section 2511(a)(2).



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      We next address the trial court’s conclusion that termination would best

serve Child’s developmental, physical and emotional needs and welfare under

Section 2511(b). Section 2511(b) provides:

         (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(b).

      The focus under Section 2511(b) is not on the parent, but on the child.

In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.Super. 2008) (en banc).

Pursuant to Section 2511(b), the trial court must determine “whether

termination of parental rights would best serve the developmental, physical

and emotional needs and welfare of the child.” In re C.M.S., 884 A.2d 1284,

1286 (Pa.Super. 2005). This Court has explained that “[i]ntangibles such as

love, comfort, security, and stability are involved in the inquiry into [the]

needs and welfare of the child.” Id. at 1287. 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.

      The trial court concluded:




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         [Father] has not maintained sufficient and consistent
         contact and there is no parental bond between the child and
         [Father]. Since her birth, [Child] has never visited [Father].
         [Father’s] sporadic phone calls from prison to the household
         do not constitute a meaningful form of communication
         between [Father] and [Child].

         In this case, Father has not provided a home, has not met
         [Child’s] needs and has not maintained a consistent and
         strong parent-child relationship. The parent’s desire to start
         over upon his release from prison is insufficient to meet
         [Child’s] needs for consistent and reliable love, affection and
         responsibility. I conclude that the emotional needs and
         welfare of [Child] can best be met by termination of the
         parental rights of [Father], and that [Child] will not suffer a
         detriment as a result of termination of the parental rights of
         [Father].

         In this case, I find that the parental bond between [Father]
         and [Child] does not exist. By contrast, I find that a strong
         bond has developed between [L.T.] and [Child].

TCO, at 7. The record supports the court’s conclusions and the court did not

err or abuse its discretion in concluding the termination of parental rights

would best serve the developmental, physical, and emotional needs and

welfare of the child.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/18




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