J-S45014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.N.M., A MINOR,             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: R.M., FATHER,

                            Appellant                 No. 511 EDA 2014


              Appeal from the Order Entered January 8, 2014
          In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000711-2013, CP-51-DP-0001380-2011,
                        FID: 51-FN-002998-2011


BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 08, 2014



wherein the trial court involuntarily terminated his parental rights to then

six-year-old D.N.M.1 We affirm.



involved with this family on June 14, 2011, after it received a General



involuntarily hospitalized for mental health treatment following a psychotic

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1

were also terminated at the same proceeding. Mother and the other father
have filed separate appeals, which are before this panel.
J-S45014-14


episode.     The report, which was later substantiated, further alleged that

Mother chronically used drugs, abused PCP, angered easily, screamed and

yelled at the children, and hit D.M.N. in a heavy-handed manner.         Father

was incarcerated, and D.M.N. and her younger sibling were placed in the

care of their maternal grandmother.

     Mother indicated that she would enter an inpatient drug and alcohol

rehabilitation program.   The children remained with maternal grandmother

and a safety plan was implemented.              Mother returned to maternal



were not being properly cared for and obtained Orders of Protective Custody

                                            ere placed with their maternal aunt,

K.S. At the July 8, 2011 shelter care hearing, the OPC was lifted and the



hearing on July 13, 2011, D.M.N. and her sister were adjudicated dependent

and placed together with the maternal aunt, where they remained until

March 2012, when they were placed in their present pre-adoptive foster

home.      Mother was referred to for a dual diagnosis evaluation and Father

was referred to the Achieving Reunification Center (ARC).

     A permanency review hearing was held on October 6, 2011. Although

Father had been contacted by DHS social worker Akilah Owens, he did not

respond.      Father remained incarcerated and did not participate in the

January 27, 2012 Family


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was to contact DHS so that services could be made available to him. At a

subsequent FSP meeting on July 10, 2012, additional objectives of parent

training and drug and alcohol treatment were added for Father.



2012 FSP meeting.      At that point, Mother was not progressing in her

meeting her objectives, Father remained incarcerated, and D.M.N. had been

in foster care since July 2011. Father was to contact D.N.M. through letters,

attend parenting classes and participate in counseling. At the permanency

hearing on March 20, 2013, the court listed the matter for a goal

change/involuntary termination of parental rights proceeding.     During the

latter half of 2013, Father responded to DHS correspondence to decline

visitation with his daughter in prison as he did not feel it was appropriate.

He also expressed that he did not want his daughter to be placed with her



     On August 14, 2013, DHS informed the court of its intention to seek

involuntary termination and a goal change to adoption. On December 20,

2013, DHS filed petitions to that effect, and following a hearing on January

8, 2014, the trial court terminated both Father and Mother

to D.N.M. pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5) and (8). Father filed

the instant appeal and complied with Pa.R.A.P. 1925(a)(2)(i) by filing a Rule

1925(b) concise statement of errors complained of on appeal.        The trial




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court addressed the arguments in its Rule 1925(a) opinion. Father presents

two questions for our review:

     1. Whether the Trial Court erred by terminating the parental
        rights of Appellant, Father, under 23 Pa.C.S.A. § 2511
        subsections (a)(1), (a)(2), (a)(5) and § 2511(a)(8)?

     2. Whether the Trial Court erred by finding under 23 Pa.C.S.A. §


        needs and welfare?



     The test for terminating parental rights consists of two parts. In In re

L.M., 923 A.2d 505, 511 (Pa.Super. 2007), we explained:

     Initially, the focus is on the conduct of the parent. The party
     seeking termination must prove by clear and convincing
     eviden
     grounds for termination delineated in Section 2511(a). Only if

     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 the 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.



                                                                t to come to

a clear conviction, without hesitance, of the truth of the precise facts in

        In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009) (quoting In re

J.L.C., 837 A.2d 1247, 1251 (Pa.Super. 2003)).

     When reviewing an order terminating parental rights,

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      we are limited to determining whether the decision of the trial
      court is supported by competent evidence. Absent an abuse of
      discretion, an error of law, or insufficient evidentiary support for
      the trial court's decision, the decree must stand. Where a trial
      court has granted a petition to involuntarily terminate parental
      rights, this Court must accord the hearing judge's decision the
      same deference that we would give to a jury verdict. We must
      employ a broad, comprehensive review of the record in order to
      determine whether the trial court's decision is supported by
      competent evidence.

In re R.N.J., supra at 276 (quoting In re S.H., 879 A.2d 802, 805



will affirm even if th                                                       In re

N.C., 763 A.2d 913, 917 (Pa.Super. 2000).         To affirm, we need only find

competent evidence in support of any one of the subsections pled.            In re

S.M.B., 856 A.2d 1235 (Pa.Super. 2004).

      Title 23 Pa.C.S. § 2511(a) sets forth the grounds for termination of

parental rights and provides in pertinent part:

      (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:

            (1) The parent by conduct continuing for a period of
            at least six months immediately preceding the filing
            of the petition either has evidenced a settled purpose
            of relinquishing parental claim to a child or has
            refused or failed to perform parental duties.

            (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.


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                  ....

            (5) The child has been removed from the care of the
            parent by the court or under a voluntary agreement
            with an agency for a period of at least six months,
            the conditions which led to the removal or placement
            of the child continue to exist, the parent cannot or
            will not remedy those conditions within a reasonable
            period of time, the services or assistance reasonable
            available to the parent are not likely to remedy the
            conditions which led to the removal or placement of
            the child within a reasonable period of time and
            termination of the parental rights would best service
            the needs and welfare of the child.

                  ....

            (8) The child has been removed from the care of the
            parent by the court or under a voluntary agreement
            with an agency, 12 months or more have elapsed
            from the date of removal or placement, the
            conditions which led to the removal or placement of
            the child continue to exist and termination of
            parental rights would best serve the needs and
            welfare of the child.

                  ....

23 Pa.C.S. § 2511.



convincing evidence of conduct, sustained for at least six months prior to the

filing of the termination petition on December 20, 2013, which revealed a



perform parental duties for purposes of section 2511(a)(1).      According to

Father, the evidence established that he met all of his objectives. He made

his whereabouts known to DHS in 2012, and he wrote a letter to the social


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worker in 2013.     Furthermore, it was undisputed that Father completed

parenting and drug and alcohol classes while incarcerated.    Finally, Father

sent letters to D.N.M., spoke to her on the telephone and sent gifts to her.

In light of his compliance with his objectives, Father argues that DHS failed

to prove by clear and convincing evidence that his parental rights should be

terminated under (a)(1).

     DHS counters that, for the first two years when D.N.M. was in

placement, Father made no effort to contact her. He effectively abandoned



contact with D.N.M. and increased contact with the agency occurred two to

three months prior to the termination hearing, and coincided with the



Father was not genuinely interested in a parental relationship with D.N.M. or

in assuming parental responsibil

performance of parental obligations.   DHS maintains that Father remained



a parent-                    In re Adoption of K.J., 936 A.2d 1128, 1133

(Pa.Super. 2007).   DHS contends that Father did not utilize the available

resources to communicate with his child to that end.

     Additionally, DHS takes the position that the evidence also satisfied

the statutory grounds for termination under (a)(2), since Father had not

provided parental care and was not in a position to do so due to his


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continuous incarceration.       It relies upon In re Adoption of S.P., 47 A.3d

817, 828 (Pa. 2012), where our High Court held that incarceration is a

factor

                                                      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



         The record indicates that Father had no contact with D.N.M. for more

than two years while she was in foster care. In September 2013, one month

after DHS indicated that it would seek a goal change to adoption, Father



                                  2
                                      Trial Court Opinion, 3/11/14, at 6. While he

did complete parenting and drug and alcohol class




demons                                                  -          Id.
____________________________________________


2
    While the trial court declined to consider any post-petition efforts by
Father to remedy conditions described therein pursuant to 23 Pa.C.S.
§
his daughter in the months prior to the filing of the goal change/termination
petition. However, due to the fact that Father had no contact with D.N.M.
for more than two years and only initiated contact upon learning that DHS
intended to seek a goal change to adoption, the trial court was not
persuaded that the interest in her well-being was genuine.



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     Furthermore, the court found it was unknown when Father would be

able to parent D.N.M. Id

incarceration rendered him incapable of parenting and acknowledged that

this was a condition that could not be remedied by Father for purposes of 23

Pa.C.S. § 2511(a)(2).



rights under Section 2511(a)(2), 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

          In re K.J., 936 A.2d 1128, 1132 (Pa.Super. 2007). In considering

the effect of incarceration for purposes of subsection (2), our High Court

stated:

     we now definitively hold that incarceration, while not a litmus
     test for termination, can be determinative of the question of
     whether a parent is incapable of providing "essential parental
     care, control or subsistence" and the length of the remaining
     confinement can be considered as highly relevant to whether
     "the conditions and causes of the incapacity, abuse, neglect or
     refusal cannot or will not be remedied by the parent," sufficient
     to provide grounds for termination pursuant to 23 Pa.C.S. §
     2511(a)(2). See e.g. Adoption of J.J., 515 A.2d at 891 ("[A]
     parent who is incapable of performing parental duties is just as
     parentally unfit as one who refuses to perform the duties.");
     E.A.P., 944 A.2d at 85 (holding termination under § 2511(a)(2)
     supported by mother's repeated incarcerations and failure to be
     present for child, which caused child to be without essential care
     and subsistence for most of her life and which cannot be
     remedied despite mother's compliance with various prison
     programs).




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In re Adoption of S.P., supra at 830-831. As this Court has repeatedly

         [A] parent's basic constitutional right to the custody and rearing of



child's right to have proper parenting and fulfillment of his or her potential in

                                                   In re K.J., supra at 1133

(quoting In re N.M.B., 856 A.2d 847, 856 (Pa.Super. 2004)).

       In the instant case, the court found a legal basis for terminating




both subsections (a)(1) and (a)(2).3 The record confirms that Father made

very limited outreach to DHS until three months before the termination

hearing.    Similarly, after no contact with his daughter for more than two

years, Father reached out to her at approximately the same time. The trial




                             -being. Trial Court Opinion, 3/11/14, at 5.

       The trial court was unpersuaded that Father, having failed to maintain

a relationship with D.N.M. during his incarceration, could fulfill his role as

____________________________________________


3
    Since we need only find that one statutory ground for involuntary
termination of parental rights was established pursuant to subsection (a), we
do not reach F



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J-S45014-14


                                                                       etion of

parenting and drug and alcohol classes cannot compensate for the fact that



to contact her for more than two years.

      Having concluded that the subsection (a) statutory requirement for

involuntary termination of parental rights was established, we must consider



and welfare will be met by termination pursuant to subsection (b). See In

re D.W., 856 A.2d 1231, 1234 (Pa.Super. 2004). Section 2511(b) provides

in pertinent part:

      (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. § 2511(b).

      It is well-

not required to use expert testimony. Social workers and caseworkers can

offer evaluations as well. Additionally, § 2511(b) does not require a formal

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

Instantly, the DHS social worker Akilah Owens, and the foster care social


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worker, Zakiah Snead, both testified to the absence of a father-child bond.

                                                                 r other than




D.N.M.    Id. at 41.   The trial court concluded that there was no evidence

presented at the hearing of a parent child bond between Father and D.N.M.

     The court also credited the testimony of Ms. Snead that D.N.M. was

                          -adoptive foster parents with whom she had resided

since July 2011. N.T., 1/8/14, at 88. Ms. Owens, who had observed D.N.M.

in the home of her foster parents a least twenty-four times concurred in that

assessment. Id. at 43. The record confirmed that D.N.M. referred to her

foster parents as



         Id. Ms. Snead testified that there would be no negative effects upon

D.N.M. if the parental rights of Father were terminated, id. at 89, and

opined that adoption was the proper goal for D.N.M. Id. at 90.




developmental, physical, and emotional needs and welfare. Father had not

seen his daughter for at least two and one-half years and had no contact at

all for at least two years. Father initiated contact only after an impending


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goal change to adoption was announced in August 2013, and that contact

consisted of one supervised phone call and several letters and gifts. Id. at

73-4. We also view the fact that D.N.M. and her younger sister are together

in the pre-

emotional needs and welfare.

      Based upon the foregoing, we find that DHS satisfied its statutory

burden pursuant to § 2511(a) and that the termination

rights would serve the best interests of D.N.M. under § 2511(b).

Accordingly, we aff

D.N.M.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2014




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