J-S17001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: V.M.C., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: K.C., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 3155 EDA 2016

         Appeal from the Decree and Order Entered September 12, 2016
             In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-AP-0000726-2016,
                           CP-51-DP-0000106-2015


BEFORE:      OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                  FILED APRIL 20, 2017

        K.C. (“Father”) appeals from the decree, entered on September 12,

2016, terminating his parental rights to his female child, V.M.C. (born in

August 2014) (“Child”).1,2 We affirm.

        The trial court made the following factual findings:



____________________________________________


1
 Although Father also appeals from the order changing Child’s permanency
goal to adoption, he does not challenge that order in his statement of
questions involved or argument section of his brief. As such, Father waived
any challenge to that order.      See Pa.R.A.P. 2116(a) and 2119(a).
Accordingly, we affirm the order changing Child’s permanency goal to
adoption.
2
  A.P., Child’s mother (“Mother”), also appealed the September 21, 2016
decree and order. Mother’s appeal is addressed at Nos. 3243 EDA 2016 and
3244 EDA 2016
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     The family in this case became known to the Philadelphia County
     Department of Human Services (“DHS”) on January 9, 2015,
     when DHS received a General Protective Services report that
     Father and A.P. (“Mother”) used crack cocaine while caring for
     Child. On January 13, 2015, DHS visited Mother and Father in
     the home of M.P. (“Grandmother”), Child’s maternal
     grandmother. DHS implemented a safety plan whereby Child
     would remain in the home in Grandmother’s care, and Mother
     and Father would move out. Upon further investigation, DHS
     discovered that Grandmother was not an appropriate caregiver.
     DHS obtained an order for protective custody and removed
     Child, placing her in a foster home. On January 25, 2015, Child
     was adjudicated dependent and fully committed to DHS custody.
     The case was then transferred to a community umbrella agency
     (“CUA”) which developed a single case plan (“SCP”) with
     objectives for Father. Over the course of 2015 and 2016, Father
     repeatedly tested positive for cocaine at the Clinical Evaluation
     Unit (“CEU”) and was never compliant with his SCP
     objectives. . . .

     The goal change and termination [hearing] was held on
     September 12, 2016. The CUA case manager testified that
     Father’s objectives since the start of this case were to attend
     CEU for dual diagnosis assessment and random drug screens,
     and attend parenting classes at the Achieving Reunification
     Center (“ARC”). The CUA case manager had discussed Father’s
     objectives, which also included housing, with him in February
     2015.

     Father began drug and alcohol treatment soon after, but as of
     the date of the [hearing], Father had not successfully completed
     treatment. This was because Father’s attendance was
     inconsistent and he repeatedly tested positive for drugs. The
     CUA case manager updated Father monthly on his objectives.
     Father signed releases for his drug and alcohol treatment and
     mental health treatment in December 2015.            Father was
     discharged from drug and alcohol treatment twice, and had to be
     re-enrolled. Father tested positive for drugs on July 20, 2016,
     showed traces of cocaine and benzodiazepines on other screens,
     has tested positive for cocaine, and refused to submit to a
     random drug screen on the most recent occasion.

     CUA provided Father money to enable him to remain in an
     appropriate house, but Father was evicted[.] Father’s only

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     income is [Supplemental Social Security Income].        Father
     enrolled in mental health treatment at Greater Philadelphia
     Health Action (“GPHA”), but is unable to provide CUA or ARC
     with documents about his treatment there.      In June 2016,
     Father’s SCP objectives were expanded to include producing his
     GPHA mental health records. Father has signed releases, but
     still has not produced the[ records].

     Father never progressed to unsupervised visits, and the CUA
     case manager rated him minimally compliant. Father attends
     monthly supervised visits, and has missed only one. While
     Father is appropriate with Child, Child has no trouble leaving
     Father when visits end. Child is happy to see his foster parents
     when visits end. It would be in Child’s best interest to be
     adopted. Child is willing to move on from Father and would
     suffer no irreparable harm if his parental rights were terminated.
     Child is bonded with her foster parents and calls them “mom”
     and “dad”. Father has a relationship with Child, but there would
     be no irreparable harm to Child if parental rights were
     terminated.

     Father testified that he has attended all court hearings because
     he wants Child back. Father testified that he is attending GPHA
     weekly, but he had previously been discharged. Father testified
     that he had a negative drug screen from GPHA for July 20, 2016,
     when he tested positive at CEU. Father was unable to explain a
     July 16, 2016, positive drug screen from GPHA, or his rejected
     random screen at CEU. Father testified that his therapist at
     GPHA refused to give him the required treatment records.
     Father was discharged from GPHA several times for non-
     attendance, and testified that he had no excuse for his
     behavior. . . . The trial court [] found that Father was not
     credible.

Trial Court Opinion, 11/15/16, at 1-3 (internal citations, footnote, and

certain capitalization omitted; paragraph breaks added).

     The procedural history of this case is as follows. On August 12, 2016,

DHS filed a petition to involuntarily terminate Father’s parental rights with

respect to Child. On September 12, 2016, the trial court held an evidentiary


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hearing on the termination petition.           Mother and Father were present and

represented by counsel.         A child advocate was present and represented

Child.     At the conclusion of the hearing, the trial court entered a decree

terminating Father’s parental rights to Child and an order changing her

permanency goal to adoption. This timely appeal followed.3

         Father presents five issues for our review:

         1. Whether the trial court erred and/or abused its discretion by
         terminating [Father’s parental rights pursuant to 23 Pa.C.S.A.
         §] 2511(a)(1) where [F]ather presented evidence that he
         substantially met his [] goals and tried to perform his parental
         duties[?]

         2. Whether the trial court erred and/or abused its discretion by
         terminating [Father’s parental rights pursuant to 23 Pa.C.S.A.
         §] 2511(a)(2) where [F]ather presented evidence that he has
         remedied his situation by taking parenting [classes, receiving]
         drug treatment[,] and receiving mental health treatment[?]

         3. Whether the trial court erred and/or abused its discretion by
         terminating [Father’s parental rights pursuant to 23 Pa.C.S.A.
         §] 2511(a)(5) where evidence was provided to establish that
         [C]hild was removed from the care of [F]ather and [M]other, and
         that [F]ather is now capable of caring for [C]hild[?]

         4. Whether the trial court erred and/or abused its discretion by
         terminating [Father’s parental rights pursuant to 23 Pa.C.S.A.
         §] 2511(a)(8) where evidence was presented to show that
         [F]ather is now capable of caring for [C]hild since he has
         completed parenting [classes] and is receiving [drug, alcohol,
         and mental health treatment?]
____________________________________________


3
   Father filed a concise statement of errors complained of on appeal
(“concise statement”) contemporaneously with his notice of appeal. See
Pa.R.A.P. 1925(a)(2)(i) and (b). On November 15, 2016, the trial court
issued its Rule 1925(a) opinion. All of Father’s issues were included in his
concise statement.



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      5. Whether the trial court erred and/or abused its discretion by
      terminating [Father’s parental rights pursuant to 23 Pa.C.S.A.
      §] 2511(b) where evidence was presented that established
      [C]hild had a strong parental bond with [F]ather and had lived
      with [F]ather for the first months of her life[?]

Father’s Brief at 7.

      We consider all of Father’s issues together as they challenge the

sufficiency of the evidence to terminate his parental rights. We

      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 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. As has been often stated, 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.

In re C.M.C., 140 A.3d 699, 704 (Pa. Super. 2016) (citations omitted).

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

that the asserted grounds for seeking the termination of parental rights are

valid.”   In re K.H.B., 107 A.3d 175, 178 (Pa. Super. 2014) (citation

omitted).

      Father argues that the trial court erred in terminating his parental

rights under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). This Court

may affirm the trial court’s decision regarding the termination of parental

rights with regard to any one subsection of section 2511(a).              In re

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Adoption of C.J.P., 114 A.3d 1046, 1050 (Pa. Super. 2015) (citation

omitted). We focus our attention on subsection 2511(a)(2). Section 2511

provides, in relevant part:

      § 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 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.

      As this Court has explained:

      In order to terminate parental rights pursuant to 23 Pa.C.S.A.
      § 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

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      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. 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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015) (internal

quotation marks and citation omitted).

      Father asserts that he remedied the conditions that caused the

placement of Child and he is now able to care for Child. Father avers that he

has substantially completed his goals of attending parenting classes and

engaging in drug, alcohol, and mental health treatment. This argument fails

because Father has not successfully completed drug and alcohol treatment.

Moreover, Father refuses to turn over his mental health records to show that

he is progressing in his mental health treatment.

      Father also claims that he can provide a safe home for Child and that

he has the present capacity to care for her. This argument is also without

merit.     As   noted    above,   Father   continues   to   use   cocaine   and

benzodiazepines.    Moreover, Father refused to take certain drug tests,

indicating that he is likely using other drugs. Father was also evicted from

his residence because of his failure to pay rent despite CUA providing Father

with rent assistance. Thus, Father cannot, or will not, provide a safe home

for himself and Child.




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      Father is correct “that past incapacity alone is not a sufficient basis for

finding present incapacity or refusal.” In re Adoption of A.N.D., 520 A.2d

31, 35 (Pa. Super. 1986), appeal denied, 533 A.2d 710 & 533 A.2d 713 (Pa.

1987). In this case, as in A.N.D., the trial court “combined past evidence of

incapacity with a finding of current incapacity and refusal.”       Id.   This is

permissible because a parent’s past actions can inform the trial court as to

the parent’s progress and likely future performance.           See Matter of

Adoption of G.T.M., 483 A.2d 1355, 1359 & n.4 (Pa. 1984).

      After considering the totality of the circumstances, the trial court

determined that DHS proved by clear and convincing evidence that Father

caused Child to be without essential parental care necessary for her well-

being. Moreover, the trial court determined that DHS proved by clear and

convincing evidence that Father cannot or will not remedy his incapacity

which led to Child being without essential parental care. For the reasons set

forth above, we ascertain no abuse of discretion in this determination.

      Having determined that DHS satisfied subsection 2511(a)(2), we next

consider section 2511(b)’s requirements. The focus in terminating parental

rights under section 2511(a) is on the parent, but the focus under section

2511(b) in on the child. In re P.Z., 113 A.3d 840, 850 (Pa. Super. 2015)

(citation omitted).

      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

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      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 []section 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.

C.D.R., 111 A.3d at 1219 (internal quotation marks and citations omitted).

      Father argues that there is a bond with Child because she lived with

him for the first months of her life. This argument, however, indicates why

there is no bond between Child and Father. Child was so young at the time

she lived with Father that she was unable to form a meaningful bond with

Father.   Father also argues that he continued visiting Child in order to

maintain his bond with her.        As noted above, none of Father’s visits were

unsupervised. Child calls her foster parents “mom” and “dad” and has no

problem separating from Father at the conclusion of the visits.                Instead,

Child is happy to reunite with her foster parents. Therefore, we ascertain no

abuse of discretion in the trial court’s determination that there was no

meaningful bond between Father and Child.

      Furthermore, “[t]he psychological aspect of parenthood is more

important in terms of the development of the child and [his or her] mental

and   emotional    health   than    the   coincidence   of   biological   or    natural

parenthood.”      In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008)

(citation omitted). Thus, the trial court may emphasize the safety needs of

the child when evaluating section 2511(b). See In re K.Z.S., 946 A.2d 753,

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763-764 (Pa. Super. 2008). As noted above, Father is a drug addict who

continues to use cocaine and other drugs despite knowing that he is subject

to drug testing. He is unable to maintain consistent housing, even with the

financial support of outside agencies.         Therefore, terminating Father’s

parental rights is best for Child’s safety.

      After considering the relevant factors, the trial court determined that

DHS proved by clear and convincing evidence that terminating Father’s

parental rights was in Child’s best interest.      We ascertain no abuse of

discretion or error of law in this determination.     As DHS satisfied section

2511(a)(2) and (b), we affirm the decree terminating Father’s parental

rights as to Child.

      Decree and order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/2017




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