J-S79018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: D.R.N.L., JR.,         :   IN THE SUPERIOR COURT OF
    A MINOR                                    :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: D.L., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 2333 EDA 2017

                  Appeal from the Order Entered July 14, 2017
      In the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-AP-0000945-2016


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JANUARY 04, 2018

       D.L. (“Father”) appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, terminating his parental rights to his minor child,

D.R.N.L, Jr. (“Child”) (born 9/14), pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2)

and (b). After our review, we affirm.1

       The trial court summarized the facts and procedural history as follows:

       On September 18, 2014, the Department of Human Services
       (“DHS”) received a General Protective Services (“GPS”) report
       alleged that Child’s mother (“Mother”) tested positive for
       marijuana at Child’s birth. The GPS report stated that mother
       admitted that she ate three “weed brownies” for nausea and lack
       of appetite and that she received limited prenatal care. Thereafter,
       DHS determined that Father and Mother did not co[habitate] and
       that Father resided with his roommate in a supervised
       independent living apartment through Valley Youth House. On
       September 19, 2014, DHS inspected Father’s apartment and
       determined that the apartment had operable utilities and
____________________________________________


1Mother’s parental rights were previously terminated. See N.T. Termination
Hearing, 7/14/17, at 55-56. She is not a party to this appeal.
J-S79018-17


      appropriate sleeping arrangements but that there were rodent
      droppings on the kitchen counter and the kitchen sink was clogged
      and filled with dirty dishes. Additionally, DHS was unable to
      approve Father’s apartment because Father’s roommate was
      determined to be the perpetrator in a Child Protective Services
      (“CPS”) report for the sexual abuse of a three year old child. . . .
      On September 20, 2017, DHS determined that the home where
      Mother intended to stay with Child was not appropriate due to
      limited space.    On September 22, 2014, Child was discharged
      from the hospital to DHS’ care. DHS obtained an Order for
      Protective Custody (“OPC”) to ensure Child’s safety and place him
      in foster care through Asociacion Puertoriquenos en Marcha
      (“APM”). At the shelter care hearing held on September 24, 2014,
      the OPC was lifted and the temporary commitment to the DHS
      was ordered to stand. At the adjudicatory hearing on October 3,
      2014, before the Honorable Jonathan Irvine, the [c]ourt
      discharged the temporary commitment and adjudicated the Child
      dependent and referred Father and Mother to the Achieving
      Reunification Center (“ARC”) program. DHS held routine Family
      Service Plan (“FSP”) meetings for Father and Mother throughout
      this case. The FSP objectives for the parents were for them to[:]
      (1) maintain sobriety and to successfully complete drug and
      alcohol treatment; (2) to provide consistent negative random drug
      screens; (3) to successfully complete mental health treatment;
      (4) to successfully complete a parenting program; (5) to obtain
      housing and (6) to visit the Child. On December 15, 2015, Father
      tested positive for benzodiazepine at very high levels at Family
      Court.     On March 15, 2016, Father tested positive for
      benzodiazepine at Family Court. On May 24, 2016, Father tested
      positive for benzodiazepine and marijuana at Family Court. Father
      was scheduled for an intake appointment at Net-West on June 6,
      2016. Father did not attend. Father was never able to secure
      housing.

Trial Court Opinion, 9/6/17, at 2-4.

      On October 11, 2016, DHS filed a petition to involuntarily terminate

Father’s parental rights to Child. The court held a hearing on July 14, 2017

and heard testimony from several witnesses, including Bill Henning, DHS




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social worker and case manager, Maureen Pie’, Guardian ad litem (“GAL”),2

Andre Briggs, CUA case manager, and Father.

         At the hearing, it was established that Child had been in placement with,

maternal cousin and her husband, a pre-adoptive home in Atlanta, Georgia,

for 33 months; all of Child’s physical, emotional and developmental needs

were being met by the foster parents. N.T. Termination Hearing, 7/14/17, at

21, 50-52. Additionally, DHS established that Father failed to meet his FSP

objectives; drugs and alcohol have been a concern for 33 months and Father

failed to establish that he has successfully completed the required drug and

alcohol and mental health treatment. Id. at 15-17, 52. Father completed

only one of five drug and alcohol screens, and admitted to prior relapses. Id.

at 15-16, 28, 46. Further, Father was unable to provide verification as to the

condition of his housing and could provide no proof of adequate housing. Id.

at 17.

         The court also heard from the GAL, who testified that “it’s just taking

too long for dad to get it together.” Id. at 54. The GAL did note that Father

and Child have a good relationship when they are together, however Child “is

three years old, and he needs a permanent home immediately.” Id.              She

also stated that she was “heartened” by the fact that Child’s “current caregiver

is open and willing to allow [Father] to continue to visit.” Id.




____________________________________________


2   We note the GAL did not file a brief in this matter.

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      Father testified that he was currently working as a home health

caregiver for his grandmother.     Id. at 38.    He stated that he had been

prescribed Xanax, which explained his positive test for benzodiazepines. Id.

at 38-39. However, Father was unable to produce documentation indicating

that he was attending or had completed mental health treatment and/or drug

and alcohol treatment. Id. at 39-40. Father also testified to his version of

the events that led to his arrest following an assault on Mother that left her

with two black eyes, stating that it was in fact his ex-girlfriend that had

punched Mother, but that Mother said he did it. Id. at 44.

      At the conclusion of the hearing, the court noted on the record that Child

had been in placement since birth, for over two and one-half years, that it did

not find Father’s testimony credible, and that Father has failed, despite being

given every chance, “to rectify the situation and meet his goals.” Id. at 55-

56. The court also noted that Father failed to establish that he had secured

adequate housing, finances or child care arrangements. Id. at 57. The court,




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therefore, terminated Father’s parental rights under sections 2511(a)(1),3

(a)(2)4 and (b).5

       On appeal, Father raises the following issues:

          1. Whether the trial court committed reversible error, when it
             involuntarily terminated Father’s parental rights where such
             determination was not supported by clear and convincing
             evidence under the Adoption Act, 23 Pa.C.S.A. §§
             2511(a)(1) and (2)?

          2. Whether the trial court erred because the evidence was
             overwhelming and undisputed that Father demonstrated a
             genuine interest and sincere, persistent, and unrelenting
             effort to maintain a parent-child relationship with Child?

          3. Whether the trial court committed reversible error when it
             involuntarily terminated Father’s parental rights without
             giving primary consideration to the effect that the
             termination would have on the developmental, physical and
             emotional needs of Child as required by the Adoption Act,
             23 Pa.C.S. § 2511(b).

Appellant’s Brief, at 8.
____________________________________________


3 “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.” 23 Pa.C.S. § 2511(a)(1).

4 “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. § 2511(a)(2).

5  “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)

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      In cases involving termination of parental rights, our standard of review

is limited to determining “whether the order of the trial court is supported by

competent evidence, and whether the trial court gave adequate consideration

to the effect of such a decree on the welfare of the child.”    In re Z.P., 994

A.2d 1108, 1115 (Pa. Super. 2010) (quoting In re I.J., 972 A.2d 5, 8 (Pa.

Super. 2009)).

      Absent an abuse of discretion, an error of law, or insufficient
      evidentiary support for the trial court’s decision, the decree must
      stand. . . . 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 B.L.W., 843 A.2d 380, 383 (Pa. Super. 2004) (en banc).

      Furthermore, we note that the trial court, as the finder of fact, is
      the sole determiner of the credibility of witnesses and all conflicts
      in testimony are to be resolved by [the] finder of fact. The burden
      of proof is on the party seeking termination to establish by clear
      and convincing evidence the existence of grounds for doing so.
      The standard of clear and convincing evidence means testimony
      that is so clear, direct, weighty, and convincing as to enable the
      trier of fact to come to a clear conviction, without hesitation, of
      the truth of the precise facts in issue. We may uphold a
      termination decision if any proper basis exists for the result
      reached. If the court’s findings are supported by competent
      evidence, we must affirm the court’s decision, even if the record
      could support an opposite result.

In re Z.P., supra at 1115-16 (internal quotations and citations omitted). If

the court finds grounds for termination under the statute have been

established by clear and convincing evidence, 23 Pa.C.S. § 2511(a), the court

must then consider the developmental, physical and emotional needs and

welfare of the child and determine whether severing the parent-child

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relationship is in the child’s best interests. See 23 Pa.C.S. § 2511(b). See

also In re: Adoption of T.B.B., 835 A.2d 387 (Pa. Super. 2003).

      Parental rights may be involuntarily terminated where any one

subsection of section 2511(a) is satisfied, along with consideration of the

provisions in subsection 2511(b). In re Z.P., supra at 1117. Initially, the

focus is on the parent’s conduct. In re L.M., 923 A.2d 505, 511 (Pa. Super.

2007). The party seeking termination has the burden of proving by clear and

convincing evidence that the parent’s conduct satisfies the statutory grounds

for termination delineated in section 2511(a). “Only if the court determines

that the parent’s conduct warrants termination of his [or her] parental rights

does the court engage in the second part of the analysis pursuant to section

2511(b): determination of the needs and welfare of the child under the

standard of best interests of the child.”    Id. (internal citations omitted).

Further, the statute “outlines certain irreducible minimum requirements of

care that parents must provide for their children, and a parent who cannot or

will not meet the requirements within a reasonable time following intervention

by the state, may properly be considered unfit and have his parental rights

terminated.” In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001).

      After our review of the record, we conclude that there is clear and

convincing evidence to support the court’s determination that Father has failed

to perform parental duties for 33 months, that he is incapable of parenting

Child, that Child had been left without proper parental care and control for 33

months, and that Father cannot, or will not, remedy his parental incapacity.

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23 Pa.C.S. § 2511(a)(1).     Further, DHS presented clear and convincing

evidence that Father has failed to demonstrate sufficient progress in

remedying the circumstances which led to Child’s placement, nor is there any

indication that he could remedy such circumstances in the foreseeable future,

even with continued services in place. The evidence shows that Father was

unwilling to actively and meaningfully participate in the services offered by

DHS. 23 Pa.C.S. § 2511(a)(2). We discern no abuse of discretion. In re

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

     Next, we consider whether the court abused its discretion by terminating

Father’s parental rights pursuant to section 2511(b). See In re Adoption of

C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc).        This Court has

stated that the focus in terminating parental rights under section 2511(a) is

on the parent, but under section 2511(b), our focus is on the child. Id. at

1008. In reviewing the evidence in support of termination under section

2511(b), our Supreme Court has stated:



     [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 re K.M., 53 A.3d 781, 791
     (Pa. Super. 2012). 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 K.M., 53 A.3d at 791.


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In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).            Our Supreme Court has

explained that “the mere existence of a bond or attachment of a child to a

parent will not necessarily result in the denial of a termination petition.” Id.

at 267. “Common sense dictates that courts considering termination

must also consider whether the children are in a pre-adoptive home

and whether they have a bond with their foster parents.” Id. at 268

(emphasis added). Moreover, in weighing the bond considerations pursuant

to section 2511(b), “courts must keep the ticking clock of childhood ever in

mind.    Children are young for a scant number of years, and we have an

obligation to see to their healthy development quickly. When courts fail . . .

the result, all too often, is catastrophically maladjusted children.” Id. at 269.

        Here, there was evidence of a developing bond between Father and

Child. However, with respect to Child’s placement, Henning, the social worker

and case manager, testified that foster mother has a “loving, nurturing,

maternal bond” with Child, and she provides Child with love, safety, security

and support. N.T. 7/14/17, at 6-7. Additionally, Child’s foster parents, who

are a pre-adoptive resource, have cared for Child all of his life and they provide

Child with all of his medical, physical and developmental needs. Id. Henning

also testified that he saw no harm to Child as a result of termination of Father’s

parental rights, noting that at the time of the hearing, Father had not seen

Child for two months. Id. at 22. See In re Z.P., 994 A.2d 1108, 1121 (Pa.

Super. 2010) (in conducting bonding analysis, court is not required to use

expert testimony, but may rely on testimony of social workers and

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caseworkers).    As we stated in Z.P., a child’s life “simply cannot be put on

hold in the hope that [Father] will summon the ability to handle the

responsibilities of parenting.”   Id. at 1125 (citation omitted).    Rather, “a

parent’s basic constitutional right to the custody and rearing of his child is

converted, upon the failure to fulfill his or her parental duties, to the child’s

right to have proper parenting and fulfillment of his or her potential in a

permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856

(Pa. Super. 2004). The record supports the court’s finding that termination

would not cause Child irreparable harm and that termination was in Child’s

best interests. We agree with the trial court’s determination that permanency

will best serve the developmental, physical and emotional needs and welfare

of Child, and that it is in Child’s best interest to terminate Father’s parental

rights. 23 Pa.C.S. § 2511(b).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/4/2018




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