J-S23001-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: K.D.A, A          :   IN THE SUPERIOR COURT OF
 MINOR                                 :        PENNSYLVANIA
                                       :
                                       :
 APPEAL OF: A.A., FATHER               :
                                       :
                                       :
                                       :
                                       :   No. 446 EDA 2020

             Appeal from the Order Entered January 27, 2020
 In the Court of Common Pleas of Philadelphia County Juvenile Division at
                     No(s): CP-51-AP-0000396-2019

 IN THE INTEREST OF: K.K.A, A          :   IN THE SUPERIOR COURT OF
 MINOR                                 :        PENNSYLVANIA
                                       :
                                       :
 APPEAL OF: A.A., FATHER               :
                                       :
                                       :
                                       :
                                       :   No. 447 EDA 2020

             Appeal from the Order Entered January 27, 2020
 In the Court of Common Pleas of Philadelphia County Juvenile Division at
                     No(s): CP-51-AP-0000397-2019

 IN THE INTEREST OF: K.A, A MINOR      :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
 APPEAL OF: A.A., FATHER               :
                                       :
                                       :
                                       :
                                       :
                                       :   No. 448 EDA 2020

             Appeal from the Order Entered January 27, 2020
 In the Court of Common Pleas of Philadelphia County Juvenile Division at
                     No(s): CP-51-AP-0000398-2019


BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.
J-S23001-20



MEMORANDUM BY NICHOLS, J.:                             FILED JULY 22, 2020

       A.A. (Father) appeals from the orders involuntarily terminating his

parental rights to K.D.A., born in August 2010, K.K.A., born in July 2011, and

K.A., born in April 2015 (collectively, Children), under 23 Pa.C.S. § 2511(a)(2)

and (b).1 We affirm.

       We summarize the procedural history of this matter from the record.

On February 15, 2017, DHS received a child protective services (CPS) report

alleging Mother’s and Father’s medical neglect of Children’s sibling (Sibling).2

At that time, Mother was living with a relative, and Father was in prison for

charges of robbery and related offenses in Philadelphia.3           During the

investigation into the CPS report, Children came to DHS’s attention because

their medical checkups were not up to date.

____________________________________________


1The trial court also terminated the parental rights of K.B. (Mother). Mother
has not appealed.

2The trial court found aggravated circumstances in the case involving Sibling
and adjudicated Sibling dependent on May 1, 2017. The trial court terminated
Parents’ rights to Sibling on March 27, 2019. N.T., 1/27/20, at 18.

In addition to Children and Sibling, Mother gave birth to another child in May
2018. Father was not the biological father of the fifth child, and that child is
not subject to this appeal.

3 Father pled guilty to the Philadelphia charges, and in October 2017, the trial
court sentenced him to two-and-one-half to five years’ imprisonment and
three years’ probation in one case and two-and-one-half to five years’
imprisonment in another case. See DHS Ex. 1. We refer to Father’s
Philadelphia criminal cases as the Philadelphia convictions in this
memorandum.



                                           -2-
J-S23001-20



       DHS took Sibling into protective custody the same day it received the

CPS report.      Children remained in Mother’s care with Mother’s relatives

providing supervision.       As part of Sibling’s case, the trial court ordered

referrals for Father to (1) the Achieving Reunification Center (ARC) for

parenting, housing, and employment issues, (2) Menergy for anger

management issues, and (3) the Clinical Evaluation Unit (CEU) for drug

screens, as well as substance abuse and mental health issues.

       On April 11, 2017, DHS filed dependency petitions regarding Children.4

On April 27, 2017, the trial court adjudicated Children dependent. Children

remained with Mother on the condition that Mother remain in her relative’s

home. The trial court maintained its referrals of Father to ARC, Menergy, and

CEU, although Father remained incarcerated on the Philadelphia convictions.

See Orders, 4/11/17 & 10/18/17.

       Following a March 7, 2018 meeting to revise the single case plan (SCP),

Father’s goals were to (1) cooperate with services, (2) make himself available

and participate in a community umbrella agency (CUA) case management

services, (3) complete and follow recommendations of a CEU evaluation, and

(4) submit three court-ordered random drug screens. In April 2018, Father

failed to participate in a CUA meeting despite being invited to do so.


____________________________________________


4K.A. was approximately two years old when DHS removed her from Mother’s
care.




                                           -3-
J-S23001-20



        Following Mother’s arrest for retail theft and endangering the welfare of

children,5 the trial court committed Children to DHS’s custody on May 24,

2018.     On November 19, 2018, the trial court permitted Father to have

monthly supervised visits with K.D.A. and K.K.A. in prison, or supervised visits

at a CUA if he was released from prison.         On March 6, 2019, Father was

released from prison for the Philadelphia convictions.      At a March 7, 2019

hearing, the trial court ordered that Father have supervised visits with

Children and undergo a paternity test with respect to K.A.

        On May 30, 2019, DHS filed petitions seeking the involuntary

termination of Father’s rights to Children under 23 Pa.C.S. § 2511(a)(1), (2),

(5), (8), and (b). At the next permanency review hearing held on June 6,

2019, the trial court granted Father weekly supervised visits and referred

Father to CEU for assessments and drug screens. The trial court appointed a

child advocate attorney as legal counsel for K.D.A. and K.K.A.6 Father’s drug

____________________________________________


5 DHS alleged that Mother and a companion left Children in a running car while
they committed the thefts.

6 The guardian ad litem (GAL) from the dependency proceedings continued to
represent Children’s best interests after DHS filed the petitions to terminate
Father’s parental rights. The records and dockets do not contain orders
appointing legal counsel for K.D.A. and K.K.A. However, based on the
notations of the individuals who appeared at continuance hearings, it appears
that the trial court appointed legal counsel at some time between June 6, 2019
and September 25, 2019. The trial court later noted that it did not appoint
legal counsel for K.A. because K.A. “didn’t really understand the process and
couldn’t make an informed decision.” N.T. at 59.




                                           -4-
J-S23001-20



tests in June 2019 and October 2019 were positive for opiates. In November

2019, Father was incarcerated on felony-two retail theft charges in Blair

County.7

       The trial court held a hearing on the petitions to terminate on January

27, 2020. Father’s counsel appeared at the hearing, and Father participated

by telephone from Blair County prison. Father stipulated to the statement of

facts in DHS’s petitions to terminate Father’s parental rights. The trial court

also admitted into evidence a report of Father’s convictions.

       Thereafter, DHS presented the testimony of Tiana Dixon, a CUA

caseworker, regarding the history of the case, Father’s incarcerations, and

Father’s contacts with Children.        Ms. Dixon noted that Father’s compliance

with the SCP was minimal throughout the case, even when Father was not

incarcerated.     Father submitted two drug screens that were positive for

opiates. Ms. Dixon testified that the bond among Father and Children was

more like a sibling bond than a parent-child bond. She opined that termination

would be in the best interests of Children and that severing their relationship

with Father would not result in irreparable harm to Children.

       Father testified on his own behalf. Father acknowledged failing the drug

tests, but asserted that he was in an accident and was going to therapy.

____________________________________________


7 Counsel for DHS asserted that Father was arrested in November 2019.
Father did not dispute that assertion, and in his appellate briefs, he has
repeated the November 2019 date when referring to the date of his
incarceration for the Blair County charges.


                                           -5-
J-S23001-20



Father indicated that he had a prescription for opiates. He testified that he

took the prescription “to the courthouse, and they had it.” N.T., 1/27/20, at

32.   Later, when he was required to show a copy to “Tiana,” apparently

referring to the CUA caseworker, he “never got a chance to.”          Id. Father

admitted he did not complete a drug treatment program and did not take

anger management or domestic violence classes.             Father noted he was

employed following his release from prison in March 2019 until his arrest in

November 2019.

      Father testified that during his incarceration on the Blair County

charges, he was unable to contact Children by telephone, either through his

sister or through the prison counselor. Id. at 35. Father indicated that his

earliest release date was “maybe in about two months” referring to a court

date at which the criminal case against him was “supposed to be getting

thrown out.” Id. at 31. Father anticipated living in an apartment upon his

release that his sister would help locate. Father further testified that his sister

was holding $15,000, which he obtained from a settlement related to his civil

case regarding his accident. Id. at 33.

      Father testified that he visited Children every Tuesday and that he had

a “very good bond with them.” Id. at 34-35. He stated that he was present

with Mother for a dental surgery and helped comfort Children.




                                       -6-
J-S23001-20



       K.D.A. and K.K.A.’s legal counsel then presented expert testimony from

Roya Paller,8 a forensic social worker.          Ms. Paller testified that K.D.A. and

K.K.A. preferred adoption. Ms. Paller noted that when she informed K.D.A.

and K.K.A. that adoption would mean that they might not get to see Mother

or Father until they were older, they replied, “That’s fine.” Id. at 42.

       At the conclusion of the hearing regarding Father, the trial court granted

DHS’s petitions to terminate Father’s parental rights based on Section

2511(a)(2) and (b) and set forth its findings and conclusions of law on the

record.    Id. at 52-56.      That same day, the trial court entered the order

terminating Father’s parental rights to Children.

       Father timely appealed and complied with Pa.R.A.P. 1925(a)(2)(i) and

(b).9 The trial court filed opinions referring to and summarizing its statements

at the January 27, 2020 hearing.
____________________________________________


8Although the transcript of the termination hearing spelled Ms. Paller’s last
name as “Pollard,” it appears that the correct spelling is “Paller,” See Ex. CA1,
and we will use the latter spelling throughout this memorandum.

9  Father filed separate notices of appeals at each trial court docket
corresponding to Children. Father’s errors complained of in the Rule 1925(b)
statements attached to each appeal were identical. In his Rule 1925(b)
statements, Father challenged the trial court’s ruling under 23 Pa.C.S. §
2511(a)(2) asserting that he “substantially met his [family service plan] goals
and thereby remedied his situation” and that DHS did not provide reasonable
effort to reunite him with Children. See, e.g., Father’s Rule 1925(b)
Statement, CP-51-AP-0000396-2019, at ¶ 1. Father also challenged the trial
court’s ruling under 23 Pa.C.S. § 2511(b) asserting that “DHS failed to provide
clear and convincing evidence that involuntary terminat[ion] of his parental
rights best served the needs and welfare of [Children].” See, e.g., id. at ¶ 2.
As discussed further in this memorandum, Father did not object to the



                                           -7-
J-S23001-20



       Father presents the following issues for review:

       1. Whether the trial court erred and/or abused its discretion by
       terminating the parental rights of [Father] pursuant to 23 Pa.[C.S.
       §] 2511 (a)(2) where [Father] presented evidence that he has
       remedied his situation by meeting his goals of consistent visitation
       with his children, Parenting classes, attending medical
       appointments, maintaining employment and remaining drug free
       and he has the present capacity to care for [Children] in his home
       with the help of his sister.

       2. Whether the trial court erred and/or abused its discretion by
       terminating the parental rights of [Father] pursuant to 23 Pa.[C.S.
       §] 2511(b) [were] NOT MET. NEITHER THE CHILD ADVOCATE
       ATTORNEY NOR THE GUARDIAN AD LITEM EVER MET WITH
       ANY OF THE THREE CHILDREN, WHO WERE 9 YEARS OLD, 8
       YEARS OLD AND 4 YEARS OLD, TO DETERMINE THEIR
       DESIRED OUTCOMES. Additionally, evidence was presented
       that established that [Father] and [Children] had a close bond.
       DHS undermined [Father] in his relationship with [Children] by
       not permitting visits with [Father] once he was incarcerated. The
       best interests of the children should be to incorporate [Father]
       back into the lives of [Children].

Father’s Briefs at 7 (emphasis in original). DHS, the GAL, and legal counsel

for K.D.A. and K.K.A. have submitted briefs supporting the order to

termination Father’s parental rights.

       Father first contends that he “substantially completed all his [family

service plan] goals and additional requirements of the [trial c]ourt. . . . [He]

has done and continues to perform all that was ever asked of him.” Father’s

Brief at 14. Father notes:

____________________________________________


adequacy of legal counsel’s representation of K.D.A. and K.K.A., or the trial
court’s decision not to appoint legal counsel for K.A. in the trial court.
Moreover, Father did not preserve issues related to legal counsel for Children
in his Rule 1925(b) statements.

                                           -8-
J-S23001-20


       Father’s objectives for the life of the case were to have a CEU
       evaluation and follow recommendations and to take random drug
       screens. Father was also to take parenting classes, attend a
       domestic violence program, attend supervised visits and to obtain
       appropriate housing. Father had several drug screens where he
       tested positive for opiates, for which [Father] indicated he had a
       prescription for, due being in an accident. Father completed a
       parenting class while incarcerated. Prior to his incarceration
       [Father] provided the social worker with pay stubs to verify his
       employment.

       Father visited consistently with [Children] prior to his
       incarceration in November of 2019. Father had requested an
       [individualized education plan] for one child and attended all
       [Children’s] dental and medical appointments prior to his
       incarceration. Father sent photographs to his children while
       incarcerated. The social worker for the city[, Ms. Dixon] testified
       inconsistently regarding the dates of [Father’s] period of
       incarceration.

       Additionally, Father testified that he may be released from prison
       in two months and would be getting an apartment using the
       settlement funds he got from his accident.

       Throughout the case [Father] attended supervised visits at various
       locations and was always present.         Since [Father] was
       incarcerated in November of 2019, he was never provided with
       any visitation with his children.

Id. at 8-9. In sum, Father asserts that the trial court erred in terminating his

parental rights under Section 2511(a)(2). Id. at 15.

       DHS contends that the trial court’s properly terminated Father’s parental

rights under Section 2511(a)(2).10 DHS’s Brief at 23. DHS asserts that the

trial court properly considered Father’s incarceration when concluding that

Father was absent from Children’s lives. Id. at 20. DHS further notes that

____________________________________________


10 The GAL also filed a brief in support of terminating Father’s parental rights
to Children. GAL’s Brief at 8-9.

                                           -9-
J-S23001-20



the trial court was entitled to rely on Father’s repeated incarcerations when

concluding that Father was incapable of parenting Children. Id.

      Additionally, DHS notes that the trial court properly found that there

was no guarantee that Father would be released from prison within two

months of the hearing.     Id.   DHS emphasizes that Father failed to make

meaningful progress with his SCP, failed to address substance abuse issues,

did not address his anger management and domestic violence issues, and did

not address housing or employment to support Children. Id. at 21-22. DHS

notes that Father made only minimal progress with parenting and visitation,

had limited contact with Children during his incarcerations, and argues that

he did not develop a parental relationship with Children. Id. In sum, DHS

asserts:

      Clearly, Father was not in a position to be a full-time parent for
      Children. The record reflects that Father’s repeated incarceration
      with no clear release date and failure to meaningfully achieve his
      SCP objectives left Children without a dedicated parent. As such,
      termination under § 2511(a)(2) was proper and should be
      affirmed.

Id. at 23.

      In reviewing an appeal from an order terminating parental rights, we

apply the following standard of review:

      [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 supported by the record. [In re R.J.T., 9 A.3d 1179,
      1190 (Pa. 2010)]. If the factual findings are supported, appellate

                                     - 10 -
J-S23001-20


      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.

      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. 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations

omitted).

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

evidence that [the] asserted grounds for seeking the termination of parental

rights are valid.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We

have explained that “[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. (citation omitted).

      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


                                     - 11 -
J-S23001-20


     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) . . . .

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

     Initially, we review the trial court’s ruling under Section 2511(a)(2)

which provides:

     § 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 condition 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).

     In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
     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 his 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 M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted).



                                     - 12 -
J-S23001-20



       Further, “[t]he 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) (citation omitted). “Parents are required to make diligent

efforts   towards     the   reasonably     prompt   assumption   of   full   parental

responsibilities.” In re A.L.D., 797 A.2d 326, 340 (Pa. Super. 2002) (citations

and quotation marks omitted).

       Instantly, the trial court stated:

       [W]ith respect to [Section 2511(a)(2)11], I am going to terminate
       involuntarily [Father’s] parental rights. The testimony is 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 or her 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.

       The testimony of CUA -- which, again, I’ve already indicated I
       found credible -- is that, for at least the first year and a half,
       almost two years that [Children] were court-involved and then in
       placement, [Father] was absent because he was incarcerated.

       CUA did testify that once [Father] was released in March of 2019,
       he did make attempts to be actively involved in [Children’s]
       li[ves]. He was visiting consistently. CUA testified he completed
       a parenting class, even though [Father] indicated he didn’t
       complete a parenting class. But CUA indicated that there’s
       documentation in there, [Father], he did complete a parenting
       class.


____________________________________________


11 The trial court specifically rejected Sections 2511(a)(5) and (8) as grounds
to terminate Father’s parental rights. See N.T. at 52.

                                          - 13 -
J-S23001-20


      Father indicated that the opiates that were in his system were due
      to medication, however, there’s no documentation to substantiate
      that claim. And in fact, there were two positive screens for
      opiates, given about four months apart, which leads me to believe
      that there wasn’t any documentation actually provided to CEU,
      otherwise, they would not have noted [Father] as positive for
      opiates. They would have indicated that he actually had a
      prescription for the opiates.

      That being said, DHS -- let me make sure I have the right exhibit
      -- 1 is [Father’s] court summary, and it indicates that [Father] is
      in and out of prison, and that, in and of itself, especially given the
      length of time [Children] have been in care, [Father] has been in
      prison more than he’s been out of prison. And as such, he’s been
      unable to parent [Children].

      Quite frankly, his incarceration has left [Children] -- and I’ll read
      [Section 2511(a)(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 or her 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.

      Father has been in prison more than he’s been out of prison. And
      that incapacity or refusal, however you choose to look at it, has
      caused [Children] to be without the essential parental care,
      control, or subsistence necessary for each of their physical, mental
      well-being. Father indicates that he’ll be out in two months, but
      there’s no guarantee. He’s still in pretrial status, or trial status.

      And I am not convinced, given that he was, in fact, released from
      prison in March of 2019 by his own admission and by CUA’s
      testimony, and within six months, re-incarcerated. So, this Court
      has no reason to believe that [Father] can or will remedy the
      causes of his incapacity that has caused [Children] to be without
      proper parental care and control.

Id. at 52-54.

      Following our review, we find no abuse of discretion or error of law in

the trial court’s ruling that DHS established grounds for terminating Father’s

parental rights under Section 2511(a)(2). The record established that Father

                                     - 14 -
J-S23001-20



partially complied with the SCP by completing a parenting class while

incarcerated for his Philadelphia convictions. See N.T. at 22. When out of

prison, Father did visit once per week with Children, attended one medical

appointment, and obtained employment. See id. at 23, 25-26, 34, 35.

      Nevertheless, Father’s compliance was minimal. See id. at 26. Father

did not enroll in a drug and alcohol program or address his anger management

issues. See id. at 21-22, 32. Father also failed two drug screens. See id.

at 20-21. Although Father testified that he had a prescription for opiates to

explain his positive drug screens, see id. at 32, the trial court was entitled to

reject Father’s generalized and unsubstantiated assertions. See S.P., 47 A.3d

at 826-27. Father did not progress beyond a weekly supervised visit with

Children, and with the exception of one medical appointment, he did not

consistently attend Children’s medical appointments.           Id. at 26, 30.

Moreover, as emphasized by the trial court, Father’s repeated incarcerations

also evidenced his inability to provide meaningful, stable parental care to

Children. Indeed, following his most recent incarceration for the Blair County

charges, Father had only minimal contact with Children, sending pictures to

Children once and participating in one individualized education program (IEP)

matter. Id. at 25, 35. Accordingly, the record contains no indication that

Father made diligent efforts toward a reasonably prompt assumption of full

parental responsibilities. See A.L.D., 797 A.2d at 340.

      In sum, having reviewed the parties’ arguments and the record, we find

no basis to disturb the trial court’s findings of fact, which were supported by

                                     - 15 -
J-S23001-20



the record. Moreover, we discern no error in the trial court’s legal conclusions

that Father’s repeated and continued incapacity to parent caused Children to

be without essential parental care and that Father could not or would not

remedy the incapacity. See C.D.R., 111 A.3d at 1216; M.E.P., 825 A.2d at

1272. As this Court has stated, “[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.” In re Adoption of R.J.S., 901 A.2d 502, 507

(Pa. Super. 2006) (citation and footnote omitted). Accordingly, we affirm the

trial court’s ruling to terminate Father’s parental rights under Section

2511(a)(2). See S.P., 47 A.3d at 826-27.

      Father’s next claim involves two arguments. First, Father contends that

the trial court erred in terminating his parental rights under Section 2511(b).

Father’s Brief at 16.    Second, Father argues that Children did not have

adequate representation of their legal interests.      Id.   We address these

arguments separately.

      First, as to the existence of a bond with Children, Father notes that he

visited regularly with Children following his release from prison for the

Philadelphia convictions.    Id.   He emphasizes that he was present for

Children’s oral surgery and that he participated in an IEP. Id. He adds that

he did not have opportunities to visit Children when in prison for the Blair

County offenses. Father asserts there was a parental bond with Children and

Children “looked to [Father to fulfill] their emotional, medical, and educational

need.” Id. at 16-17.

                                     - 16 -
J-S23001-20



       DHS responds that the trial court properly terminated Father’s parental

rights under Section 2511(b) “because the record reflected that Children did

not share parent-child bonds with him.”12 DHS’s Brief at 26. DHS notes that

the record supported the trial court’s finding that termination best suited

Children’s needs and welfare. Id. Specifically, DHS states that Father did not

progress past supervised vitiations on a weekly basis, and that Ms. Dixon

testified that Father and Children had more a sibling-type bond than a parent-

child bond. Id. According to DHS, Ms. Dixon testified that when Father began

regular visits with Children after his release from prison on the Philadelphia

convictions, Children had to warm back up to him over time because of the

lack of contact with Father, and they did not complain or act out when their

visits with Father ended. Id. at 26-27. Additionally, DHS notes that Ms. Paller

opined that there was no bond between Father and K.D.A. and K.K.A, because

they told her that they did not “really see him.” Id. at 27.

       Section 2511(b) states:

       (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.

23 Pa.C.S. § 2511(b).


____________________________________________


12 The GAL also argued that the trial court properly terminated Father’s
parental rights under Section 2511(b).

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        This Court has stated that the focus in terminating parental rights under

Section 2511(a) is on the parent, but the focus of Section 2511(b) is on the

child. See In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008). In reviewing

the evidence in support of termination under Section 2511(b), our Supreme

Court has stated as follows:

        [I]f the grounds for termination under subsection (a) are met, a
        court “shall give primary consideration to the developmental,
        physical and emotional needs and welfare of the child.” 23 Pa.C.S.
        § 2511(b). The emotional needs and welfare of the child have
        been properly interpreted to include “[i]ntangibles such as love,
        comfort, security, and stability.” In In re E.M., 620 A.2d [481,
        485 (Pa. 1993)], this Court held that the determination of the
        child’s “needs and welfare” requires consideration of the emotional
        bonds between the parent and child. The “utmost attention”
        should be paid to discerning the effect on the child of permanently
        severing the parental bond.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (some citations omitted).

        When evaluating a parental bond, “the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well.    Additionally, Section 2511(b) does not require a formal bonding

evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (citations

omitted). Further, “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 Adoption

of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (citation omitted).

        Instantly, the trial court considered Section 2511(b) as follows:

        [L]et me be clear, in addition, [Father’s] testimony is that he has
        a good relationship with [Children] and that he’s maintained a
        place of importance, but the testimony of Ms. [Paller], which I find
        credible, is that at least [K.D.A.] and [K.K.A.] don’t have the same

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      impression of [Father], and that, in fact, their impression -- even
      though he was visiting consistently from March until seemingly
      November -- is, we don’t see him very often. That, in and of itself,
      for a 9-year–old and an 8-year-old, is very telling. And so, with
      respect to [Section 2511(a)(2)], the testimony of Ms. [Paller] is
      very critical and seems to indicate that [K.D.A. and K.K.A.] don’t
      have the same -- an attachment to [Father] that would be that of
      a father/daughter attachment. In fact, as to [K.D.A. and K.K.A.],
      they specifically told Ms. [Paller] that they would be fine if they
      never got to see [Father] again.

      With respect to [K.A.], she’s only four, so there was not the same
      assessment given to her. But CUA testified that the relationship
      of [Father] with [Children] is not that of a father/child, that
      [Children] don’t really have a negative reaction when [Father]
      doesn’t make himself available for visits, and that they seem to
      be fine. So, based on that, this Court is going to find that there
      is no parent/child bond between [F]ather and [Children] and, as
      such, there would not be any detrimental impact if his rights were
      terminated involuntarily as to [Children].

Id. at 52-56.

      Following our review, we conclude that the record supported the trial

court’s findings of fact and conclusions of law. We acknowledge, as did the

trial court, that Father testified that there was a meaningful parent-child bond

with Children. However, there was ample evidence supporting the trial court’s

determinations that no positive parent-child bond existed and that the

termination     of   Father’s   parental   rights   would   not   harm   Children’s

developmental, physical, and emotional needs and welfare. See N.T. at 22-

24, 40-42. Therefore, we affirm the trial court’s rulings as to Section 2511(b).

See S.P., 47 A.3d at 826-27.

      Second, as to Children’s right to counsel, Father asserts:

      [In re Adoption of L.B.M., 161 A.3d 172, 174 (Pa. 2017)],
      requires that an attorney for the child be appointed to represent

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      a child’s legal interests. This requirement requires an attorney
      and not a social worker.        If the court had meant that
      testimony from a social worker would suffice for this
      requirement of a child advocate attorney, then the GAL
      could have performed this role and hired a social worker.
      A child advocate attorney is required, at the very least, to meet
      with his or her client. This requirement has not been met in this
      case.

Father’s Brief at 15-16 (emphasis in original). Father further relies on this

Court’s decision in In the Interest of D.N.G., ___ A.3d ___, 2020 PA Super

62, 2020 WL 1226501 (Pa. Super. filed Mar. 13, 2020), to argue that legal

counsel for K.D.A. and K.K.A did not honor Children’s right to adequate

representation. Id. at 16.

      DHS asserts that that legal counsel “in the instant matter properly

fulfilled her duties.”   DHS’s Brief at 29.   According to DHS, “K.D.A.’s and

K.K.A.’s positions were clear,” and legal counsel advocated consistently with

their wishes” and “actively participated” throughout the hearing.” Id. at 31.

DHS asserts that “Father’s reliance on D.N.G. is misguided” because D.N.G.

involved a case where the child expressed an interest in reunifying with a

parent. Id.

      Legal counsel has also filed a brief responding to Father’s assertion that

her representation of K.D.A. and K.K.A. was inadequate. Legal counsel notes

that she obtained an expert who determined that K.D.A. and K.K.A’s interests

were aligned with adoption. Legal Counsel’s Brief at 7. Legal counsel asserts

that she “discharged her duty to protect [K.D.A. and K.K.A’s] legal interest by

“not only offering testimony of an expert witness, a forensic social worker, but


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also by zealously advocating for [K.D.A. and K.K.A’s] interest.” Id. Legal

counsel also states that Father’s reliance on D.N.G. is “flawed.” Id.

      The GAL has also submitted a brief. In relevant part, the GAL contends

that “K.A. was four-years old at the time of the [termination] hearing and at

the time that counsel visited her, [K.A.] was unable to verbalize where she

wanted to live or understand the meaning of adoption.” GAL’s Brief at 12.

The GAL notes that “K.A. had one attorney representing her desires and

interests.” Id.

      Section 2313(a) of the Adoption Act states:

      The court shall appoint counsel to represent the child in an
      involuntary termination proceeding when the proceeding is being
      contested by one or both of the parents. The court may appoint
      counsel or a guardian ad litem to represent any child who has not
      reached the age of 18 years and is subject to any other proceeding
      under this part whenever it is in the best interests of the child. No
      attorney or law firm shall represent both the child and the
      adopting parent or parents.

23 Pa.C.S. § 2313(a).

      In L.B.M., our Supreme Court considered “whether 23 Pa.C.S. §

2313(a), which mandates the appointment of counsel for children involved in

contested involuntary termination of parental rights . . . proceedings, is

satisfied by the appointment of a [GAL] provided that the GAL is an attorney.”

L.B.M., 161 A.3d at 174. In L.B.M.,

         a majority of the Court agreed on several points: (a) in the
         context of contested termination-of-parental-rights . . .
         proceedings, the first sentence of Section 2313(a) requires
         that the common pleas court appoint an attorney to
         represent the child’s legal interests, i.e., the child’s

                                     - 21 -
J-S23001-20


         preferred outcome; (b) where there is a conflict between the
         child’s legal interests and his best interests, [a GAL], who
         advocates for the child’s best interests, cannot
         simultaneously represent the child’s legal interests; and (c)
         in such a circumstance, the failure to appoint a separate
         attorney to represent the child’s legal interests constitutes
         structural error, meaning it is not subject to a harmless-
         error analysis.

In re T.S., 192 A.3d 1080, 1082 (Pa. 2018) (footnotes omitted).

      In T.S., our Supreme Court held that the trial court did not err in

allowing the children's GAL to act as their counsel during the termination

proceeding because, at two and three years old, the children were incapable

of expressing their preferred outcome.        Id. at 1089, 1092.     The Court

explained that Section 2313(a) was satisfied by the representation of the

children by the GAL because “if the preferred outcome of [the children is]

incapable of ascertainment because [they are] very young and pre-verbal,

[then] there can be no conflict between the [children’s] legal interests and his

or her best interests.”    Id. at 1092-93. The Court further reaffirmed that

“where there is no conflict between a child’s legal and best interests, [a GAL]

representing the child’s best interests can also represent the child’s legal

interests.” Id. at 1092.

      In In re Adoption of K.M.G., 219 A.3d 662 (Pa. Super. 2019) (en

banc), appeal granted in part, 221 A.3d 649 (Pa. 2019), this Court considered

“the procedural issue of whether Superior Court must sua sponte review every

termination case to make an independent determination of whether a GAL has

a conflict.” K.M.G., 219 A.3d at 667. The K.M.G. Court held that the Superior


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J-S23001-20



Court “only has the authority to raise sua sponte the issue of whether the

lower court appointed any counsel for the child, and not the authority to delve

into the quality of the representation.” Id. at 667-68.

      In so holding, the K.M.G. Court overruled In re Adoption of T.M.L.M.,

184 A.3d 585, 587 (Pa. Super. 2018), and reasoned as follows:

      A three-judge panel of this Court, in T.M.L.M., held that Superior
      Court must sua sponte make an independent determination of
      whether a GAL has a conflict in every involuntary termination
      case. In that case, the orphans’ court stated on the record that
      the appointment of the GAL for the involuntary termination
      hearing complied with L.B.M. and, thus, Section 2313(a). No
      party on appeal contested this finding of the orphans’ court. Yet,
      the panel in T.M.L.M. sua sponte reviewed the record, found that
      the GAL may have a conflict, reversed the order terminating the
      mother’s parental rights, and remanded the case for further
      proceedings.

                                  *     *      *

      It is well established that an appellate court may not raise an issue
      sua sponte, except when the issue addresses the subject-matter
      jurisdiction of the court.

      There are, however, a few discrete, limited non-jurisdictional
      issues that the Supreme Court has authorized the lower courts to
      raise sua sponte, such as waiver as a result of various briefing
      defects.

                                  *     *      *


      Similarly, when the orphans’ court fails to appoint any counsel for
      a child in an involuntary termination hearing, Superior Court may
      raise this issue sua sponte.

                                  *     *      *

      The Supreme Court disfavors the intermediate appellate court’s
      consideration of issues sua sponte because it is more important to
      respect orderly judicial decision-making, afford counsel the


                                      - 23 -
J-S23001-20


      opportunity to brief and argue issues, permit the court to benefit
      from counsel’s advocacy, and uphold issue preservation rules.

      Although our Supreme Court has authorized the appellate courts
      to raise sua sponte the issues above, it has not authorized the
      Superior Court to raise sua sponte the issue of whether a GAL
      representing a child in an involuntary termination hearing has a
      conflict in such representation.     In fact, the most recent
      Pennsylvania Supreme Court cases addressing the child’s
      statutory right to legal counsel, as opposed to a GAL, in an
      involuntary termination hearing pursuant to 23 Pa.C.S. § 2313(a)
      do not involve situations in which the Superior Court raised the
      issue sua sponte.

      In L.B.M., the parents raised the issue of a conflict with the
      orphans' court and appealed the issue to Superior Court.
      Similarly, in T.S., the parents raised the issue of a conflict in
      Superior Court. In both cases, because the parents raised the
      conflict issue before either the orphans’ court or Superior Court,
      there was no reason for the Supreme Court to address whether
      Superior Court can raise the conflict issue sua sponte. Thus, at
      this point, the Supreme Court has not authorized Superior Court
      to raise the conflict issue sua sponte.

                                   *     *      *

      Applying the current precedent to these facts, Superior Court has
      no authority to raise sua sponte the issue of whether a GAL has a
      conflict. Rather, as stated previously, this Court only has the
      authority to raise sua sponte the trial court’s failure to appoint any
      counsel for the Child. In this case, the orphans’ court did appoint
      counsel, the GAL, and we have no authority to delve into the
      quality of the GAL’s representation. The Supreme Court has not
      authorized us to do so.

K.M.G., 219 A.3d at 668-69 (citations omitted).

      In light of the foregoing, we are constrained to conclude that in the

present case, this Court cannot consider whether there was a conflict of

interest in the GAL’s representation of K.A. There is no indication that Father

objected to the trial court’s decision not to appoint separate legal counsel for



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K.A.    See N.T. at 59.        Furthermore, similar to K.M.G., Father has not

developed any argument that the GAL had a conflict when representing K.A.

See Father’s Brief at 15-16.         Therefore, K.M.G. precludes this Court from

addressing the GAL’s representation of K.A. on our own accord where Father

has not done so himself.13 See K.M.G., 219 A.3d at 668-69.

       With respect to Father’s remaining claims as to legal counsel’s

representation of K.K.A. and K.D.A., Father has argued in his brief that legal

counsel’s representation violated Section 2313(a) in light of L.B.M. Therefore,

we will address Father’s arguments that legal counsel’s representation was

inadequate, even though Father did not preserve this issue in the trial court.

See T.S., 192 A.3d at 1092; D.N.G., 2020 WL 1226501 at *4.

       In D.N.G., the trial court appointed legal counsel for a child in a

contested involuntary termination of parental rights proceeding, while the GAL

continued to represent the child’s best interests. D.N.G., 2020 WL 1226501

at *2. At the termination hearing, legal counsel in that case informed the trial

court that the child opposed adoption and wanted to return to his mother. Id.

____________________________________________


13 We note that our Supreme Court granted allowance of appeal, in part, in
K.M.G. to consider whether this Court erred in concluding it had no authority
to review whether a child’s legal interest was represented as required by
Section 2313 and L.B.M. See K.M.G., 221 A.3d at 649. However, this Court’s
en banc decision in K.M.G. remains binding until it is overruled. See Marks
v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa. Super. 2000) (“we have
long held that as long as the decision has not been overturned by our Supreme
Court, a decision by our Court remains binding precedent”).




                                          - 25 -
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However, legal counsel did not present any evidence or examine witnesses to

support the child’s stated preferences.14 Id.      On appeal from the order

terminating her parental rights to the child, the mother, for the first time on

appeal, asserted that legal counsel “neglected to represent” the child’s stated

preferences against adoption and for a return to his mother. Id.

       The D.N.G. Court agreed with the mother, noting:

       [B]ased upon our review of the record, we conclude that [legal
       counsel’s] representation did not satisfy the mandate of §
       2313(a), because he neglected to advocate for his client’s legal
       interest. Under the circumstances of this case, where the [GAL]
       argued against termination and recommended a thorough bond
       analysis, and where an eleven-year-old stated unequivocally that
       he desired to return to his mother, it is not possible for legal
       counsel to zealously represent his client’s legal interest merely by
       engaging in one discussion with the child on the eve of trial and
       then summarizing that conversation for the family court. Rather
       than simply reporting a preference to the family court, it was
       [legal counsel’s] obligation to engage in client-directed advocacy
       on behalf of [the child] with regard to the child’s preferred
       outcome. Therefore, we hold that [the child] was deprived of his
       statutory right to counsel to advance his legal interest, a
       deprivation that continues in this appeal.

Id. at *5.

       Instantly, legal counsel for K.D.A. and K.K.A. took steps to ascertain and

present evidence regarding K.D.A. and K.K.A.’s legal interests in adoption by

retaining an expert. See N.T. at 4. Although legal counsel did not expressly
____________________________________________


14 Additionally, in D.N.G., Mother requested that the child be placed in
permanent legal custody instead of adoption, and the GAL advocated against
termination and requested a comprehensive bonding assessment. D.N.G.,
2020 WL 1226501 at *2.



                                          - 26 -
J-S23001-20



state that she personally met with K.D.A. and K.K.A., legal counsel explained

she retained an expert to confirm K.D.A. and K.K.A.’s preferences for adoption

and against reunification and to present evidence of K.D.A. and K.K.A.’s

preferences without requiring legal counsel to testify.15    See id.   Because

K.D.A. and K.K.A. expressed their desires to be adopted and not to reunify

with their parent, any failure to advocate in favor of reunification was not the

kind of structural error described in L.B.M. and T.S. See T.S., 192 A.3d at

1092.     Similarly, because legal counsel advocated in favor of K.D.A. and

K.K.A’s stated interests in adoption at the termination hearing, Father’s

reliance on D.N.G. to argue that legal counsel’s representation was deficient

merits no relief. See D.N.G., 2020 WL 1226501 at *5.

        Order affirmed.




____________________________________________


15 We note that this Court has held that the rules against hearsay did not
preclude legal counsel from informing the court of a child’s position regarding
the termination of parental rights. In re B.J.Z., 207 A.3d 914, 920 (Pa.
Super. 2019). We add, however, that at least one Pennsylvania Supreme
Court Justice, in a different case, has expressed a willingness to review a
similar question in a dissent to an order denying allowance of appeal. See
Interest of J.C.F., 199 A.3d 859 (Pa. 2018) (per curiam order) (Wecht, J.
dissenting).

                                          - 27 -
J-S23001-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2020




                          - 28 -
