J   -S23001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: J.M.D., A MINOR                      IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA

    APPEAL OF: T.D., FATHER




                                            :   No. 2692 EDA 2016

                  Appeal from the Order Entered July 25, 2016
             In the Court of Common Pleas of Philadelphia County
         Domestic Relations Division at No(s): CP-51-AP-0000607-2016;
                            FID: 51 -FN -001355-2013


BEFORE:      OLSON, SOLANO, and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                               FILED APRIL 04, 2017

        T.D. ("Father") appeals from the decree and order entered on July 25,

2016, terminating his parental rights to his female child, J.M.D. ("Child")

(born in April of 2006), pursuant to the Adoption Act, 23 Pa.C.S.A.   §   2511,

and changing the permanency goal for Child to adoption pursuant to the

Juvenile Act, 42 Pa.C.S.A.   §   6351.1 We affirm.

        In its opinion entered on November 29, 2016, the trial court set forth

the following factual background and procedural history of this appeal, which

we incorporate as this Court's own. See Trial Court Opinion, 11/29/16, at 2-


1
  In a separate decree entered on that same date, the trial court terminated
the parental rights of Child's mother, J.R. ("Mother"). Mother has not filed
an appeal from the termination of her parental rights to Child, nor is she a
party to the instant appeal.
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18.    Importantly, on July 8, 2016, the Philadelphia Department of Human

Services ("DHS" or "the Agency") filed     a   petition to involuntarily terminate

Father's parental rights and change Child's permanency goal to adoption.

On July 25,      2016, the trial court held an evidentiary hearing on the

termination and goal change petitions.2 The trial court issued findings of

fact with regard to the evidentiary hearing as follows.

        T.D., Father[,] was present and represented by his attorney.
        (N.T. 7/25/2016, p.6 at 14-18).

        The Assistant City Solicitor's first witness was Sherice Blount,
        DHS Social Worker, assigned to this family's case in August 2015
        until April 2016. She noted that in January 2013, there was a
        GPS Report that alleged that J.M.D. pushed her brother down a
        flight of stairs. That Report was substantiated. There was a
        subsequent GPS Report in March 2013 with allegations that the
        home was dirty and it lacked appropriate food. There were also
        allegations that Mother was using marijuana and cocaine, and
        using her food stamps to purchase the drugs. That Report was
        substantiated. DHS implemented in -home protective services
        and subsequently the Children came into placement. (N.T.
        7/25/2016, p.16 at 13-25; p.17 at 1-10).

        [Ms. Blount] testified a Family Service Plan (FSP) Meeting was
        held on July 22, 2015, and Father's objectives were that he
        would make his whereabouts known. Prior to that, the [c]ourt
        [o]rdered Father on May 13, 2015, to provide mental health
        documentation. (N.T. 7/25/2016, p.21 at 24-25; p.22 at 1-3;
        p.25 at 17-25).

        Ms. Blount further testified that the Court found on July 28, 2015
        that Father had not provided DHS with a copy of the Mental


2 In its opinion, the trial court noted that Child's four siblings: D.C. (born in
December of 2008); E.T. (born in April of 2010); L.R. (born in July of 2012);
and J.R. (born in August of 2014), were also subjects of the hearing on July
25, 2016. Trial Court Opinion, 11/29/16, at 1 n.1, 16 n.2.


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        Health Report as [o]rdered by the [c]ourt at the last listing.
        Further[,] the [c]ourt found that the parents have not visited
        [c]hild on a consistent basis. She noted that she had never met
        the Father and today at this hearing was the first time she had
        seen him. (N.T. 7/25/2016, p.27 at 13-25; p.28 at 1-13).

        Ms. Blount testified that the FSP and other documentation had
        been mailed to Father at the address that the Agency had,
        however, she never had contact with him. She noted that during
        the term of her involvement in the case there was no contact
        between [] Child and [] Father. (N.T. 7/25/2016, p.30 at 10-
        19).

        Ms. Blount stated she believed  there was no bond       between []
        Child and Father because Father had never contacted     her nor the
        previous DHS worker, nor had he contacted [] Child.     She opined
        that [] Child would not suffer irreparable harm         if Father's
        parental rights were terminated. (N.T. 7/25/2016,       p.31 at 7-
        19).

        Regarding the foster parent, M.A., Ms. Blount stated [] Child is
        bonded with her foster parent.        She observes caring and
        affection between the two, and [] Child is very helpful to her
        foster parent, listens and tries hard to follow the directions of
        her foster parent. Ms. Blount believes it is in the best interest of
        [] Child (and the other [c]hildren) that they be adopted. (N.T.
        7/25/2016, p.31 at 20-25; p.32 at 1-14).

        The next witness to testify was Kamesh Callands, the CUA
        Wordsworth [c]aseworker. She stated she was assigned this
        case in April 2016, and noted that Father never contacted her
        nor visited [] Child. She noted letters were sent to Father,
        however, he never responded. She opined there is no parental
        bond between [] Child and Father because Father has not visited
        her. Also she believes [] Child would not suffer irreparable harm
        if Father's parental rights were terminated. (N.T. 7/25/2016,
        p.33 at 6-25; p.34 at 1-8, 20-25; p.35 at 1-2).

        Regarding the [f]oster [p]arent, M.A., Ms. Callands stated []
        Child is safe and all her needs are being met by the [f]oster
        [m]other. The safety date for the [c]hildren was 7/13/2016.
        Ms. Callands reported that they are bonded.     M.A. is a great
        caregiver and parent to [] Child and the rest of the [c]hildren.
        Only one sibling, J.R., is not in the same home. Further, Ms.

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        Callands noted that M.A. is the pre -adoptive home foster parent
        through Devereaux. She opined it is in the best interest of []
        Child to be adopted. (N.T. 7/25/2016, p.35 at 3-22).

        Father, T.D., was next to testify. He stated he has telephone
        contact with [] Child every two months, and the last time he
        spoke to her was before the summer began. He stated he spoke
        to her for about 20 minutes and asked her how school was and
        how she was doing. He finally stated he does not want his
        parental rights terminated. (N.T. 7/25/2016, p.39 at 16-25;
        p.40 at 1-25; p.41 at 1-14).

Trial Court Opinion, 11/29/16, at 16-18 (footnote omitted).

        At the conclusion of the hearing, the trial court found clear and

convincing evidence to terminate Father's parental rights and change Child's

permanency goal to adoption, and entered its termination decree and goal

change order.      On August 22, 2016, Father filed a notice of appeal with

concise statement of errors complained of on appeal pursuant to Pa.R.A.P

1925(a)(2)(i) and (b).

        In his brief on appeal, Father raises the following issues:

        1.  Whether the trial court erred in terminating Appellant's
        parental rights under 23 Pa.C.S.A. section 2511(a)(1), the
        evidence having been insufficient to establish Father had
        evidenced a settled purpose of relinquishing parental claim, or
        having refused or failed to perform parental duties[?]

        2.  Whether the trial court erred in terminating Appellant's
        parental rights under 23 Pa.C.S.A. section 2511(a)(2), the
        evidence having been insufficient to establish Father caused
        [C]hild to be without essential parental care, nor could that not
        have been remedied[?]




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Father's Brief, at 5.3

        Father argues that the evidence is insufficient to demonstrate that he

lacks the capacity to parent.     He contends   that the record merely reflects   a


vague reference relating to his failure to produce his mental health report.

According to Father, this failure is clearly insufficient for DHS to meet its

burden of proof. See Father's Brief at 8, 12.

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

adhere to the following standard:

        [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
        courts review to determine if the trial court made an error of law
        or abused its discretion. Id.; R.I.S., 36 A.3d 567, 572 (Pa.
        2011) (plurality opinion). As has been often stated, an abuse of
        discretion does not result merely because the reviewing court
        might have reached a different conclusion.          Id.; see also
        Samuel Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51
        (Pa. 2011); Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003).
        Instead, a decision may be reversed for an abuse of discretion


3 Father does not challenge section 2511(b) in either his concise statement
or his statement of questions involved portion of his brief. We, thus, find
that he waived the issue. See Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an
appellant waives issues that are not raised in both his concise statement of
errors complained of on appeal and the statement of questions involved in
his brief on appeal). For the same reason, Father has waived any challenge
to the change in permanency goal to adoption.




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         only    upon demonstration of manifest              unreasonableness,
         partiality, prejudice, bias, or ill -will. Id.

         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. R.J.T., 9 A.3d at
         1190.    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
         Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P.,       47 A.3d 817, 826-27 (Pa. 2012).

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

         Moreover, we have explained:

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

         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).        See   In re B.L.W.,    843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).     We will focus on section 2511(a)(2) and (b), and review Father's

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challenges together, as did the trial court.              Section 2511(a)(2) and (b)

provide as follows:

        §   2511. Grounds for involuntary termination

        (a) General rule. --The rights of        aparent 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.

        To satisfy the requirements of section 2511(a)(2), the moving party

must produce clear and convincing                evidence regarding    the following

elements: (1) repeated and continued incapacity, abuse, neglect or refusal;

(2) such incapacity, abuse, neglect or refusal caused the child to be without

essential parental care, control or subsistence necessary for his physical or

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

refusal cannot or will not be remedied. See            In re Adoption of M.E.P.,      825

A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental

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

duties.   In re A.L.D.     797 A.2d 326, 337 (Pa. Super. 2002).

        Termination   is   warranted pursuant to subsection (a)(2), as Father

clearly lacks parental capacity, and the evidence showed that he will be

unable to remedy that situation within           a   reasonable period of time, if ever.

As there is competent evidence in the record             that supports the trial court's

findings and credibility determinations, we find no abuse of the trial court's

discretion in finding that Father's parental rights should be terminated under

section 2511(a)(2).        In re Adoption of S.P.,         47 A.3d 817, 826-827 (Pa.

2012).

        Although Father waived any challenge to section 2511(b), we will

analyze the sufficiency of the evidence under that section in accordance with

our caselaw.     We have explained that the focus in terminating parental

rights under section 2511(a)       is on   the parent, but it   is on   the child pursuant

to section 2511(b).        See   In re Adoption of        C.L.G., 956 A.2d 999, 1008

(Pa. Super. 2008) (en banc).               In reviewing the evidence in support of




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termination under section 2511(b), our Supreme Court recently 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 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.

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

        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) (internal

citations omitted).     Although it   is   often wise to have   a   bonding evaluation

and make it part of the certified record,          "[t]here are some instances      .   .




where direct observation of the interaction between the parent and the child

is   not necessary and may even be detrimental to the child."            In re   K.Z.S.,

946 A.2d 753, 762 (Pa. Super. 2008).

        A parent's abuse and neglect are likewise a relevant part of this

analysis:

         concluding a child has a beneficial bond with a parent simply
         because the child harbors affection for the parent is not only

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        dangerous, it is logically unsound. If a child's feelings were the
        dispositive factor in the bonding analysis, the analysis would be
        reduced to an exercise in semantics as it is the rare child who,
        after being subject to neglect and abuse, is able to sift through
        the emotional wreckage and completely disavow a parent       .   .   .


        Nor are we of the opinion that the biological connection between
        [the parent] and the children is sufficient in and of itself, or
        when considered in connection with a child's feeling toward a
        parent, to establish a de facto beneficial bond exists. The
        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) (internal citations

and quotation marks omitted).        Thus, the court may emphasize the safety

needs of the child.    See   In re   K.Z.S., 946 A.2d 753, 763-764 (Pa. Super.

2008) (affirming the involuntary termination of the mother's parental rights,

despite the existence of some bond, where placement with the mother would

be contrary to the child's best interests, and any bond with the mother

would be fairly attenuated when the child was separated from her, almost

constantly, for four years).

        The trial court found as follows with regard to section 2511(a)(2) and

(b):

        The [r]ecord demonstrates Father's lack of bond with [] Child
        and lack of contact with [] Child, claiming he had telephone calls
        every two months. It is clear by the evidence presented that
        there is no bond between Father and [] Child. Credible evidence
        was presented of Father's lack of presence and lack of
        communication with Agency personnel and with [] Child.

        After hearing the credible testimony of Sherice Blount, the DHS
        Social Worker, and Kamesh Callands, the CUA Wordsworth
        Caseworker, the [c]ourt found by clear and convincing evidence,

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        that their observations and conclusions regarding Father's
        noncompliance with the FSP objectives, and lack of contact and
        communication were persuasive.
                                       * * *


        The documents and testimony provided this [c]ourt with clear
        and convincing evidence that termination of Father's parental
        rights would be in the best interest of [] Child. This [c]ourt finds
        credible the testimony from the [a]gency staff members that []
        Child would not suffer irreparable harm if Father's rights were
        terminated and that termination of Father's parental rights would
        be in the best interest of [] Child. The evidence was clear that
        Father did not make the effort to communicate with the Agency
        nor did he contact [] Child. [] Child currently lives in a nurturing
        and loving home with the [f]oster [m]other, who is bonded to []
        Child and meets all of her emotional and physical needs.

        CONCLUSION

        The [c]ourt found that Father repeatedly failed to complete
        objectives and failed to make contact or communicate with the
        Agency and with [] Child. The [c]ourt was not persuaded that
        Father could or would resolve these issues in the near future to
        provide permanency and safety for [] Child.

        At the conclusion of the hearing the Court stated:

           Regarding [] Child, J.M.D., the evidence is clear and
           convincing that both parents have failed to remedy any of
           the issues that brought [] Child into care, have failed to
           create a parental bond with [] Child and will not be able
           to create a parental bond with [] Child going forward.

           Notwithstanding Father's testimony[,] the existence of a
           few phone calls every couple of months does not make a
           parent nor does it create a likelihood that he would be
           able to parent [] Child.

           She has been in care since 2014, with the same caretaker
           and the evidence is uncontested that she has in fact
           formed a parental bond with the existing caretaker and
           does not have a parental bond with either of her natural
           parents.
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           With respect to Father, the evidence established under
           Section 2511(a)(1) and (2), since [] Child was not in
           Father's care when removed and the placement has been
           in excess of one year,[sic] in addition [Section] 2511(b)
           is satisfied because again there would be no harm in
           severing a relationship that does not exist.      Father's
           rights are terminated as well as Mother's rights are
           terminated. And the goal may be moved to adoption for
           [] Child." [sic]

        (N.T. 7/25/2016, p.42 at 10-25; p.43 at 1-17).

                                      [c]ourt respectfully requests that
        For the foregoing reasons, this
        the Order of July 25, 2016 [t]erminating Father, T.D.'s
        [p]arental [r]ights and changing the [p]ermanency [g]oal to
        [a]doption, be AFFIRMED.

Trial Court Opinion, 11/29/16, at 19-22.

        Our Supreme Court has observed 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, and that "[e]ven the most abused of children will often

harbor some positive emotion towards the abusive parent."                   See    In re:
T.S.M., 71 A.3d at 267 (quoting             In re K.K.R.-S.,   958 A.2d at 535).      The

Supreme Court instructed, "[t]he continued attachment to the natural

parents, despite serious parental rejection through abuse and neglect, and

failure to correct parenting and behavior disorders which are harming the

children cannot be misconstrued as bonding."             In re:   T.S.M., 71 A.3d at 267

(quoting   In re Involuntary Termination of C.W.S.M.,                839 A.2d 410, 418

(Pa. Super. 2003) (Tamilia, J. dissenting)).




                                             - 12 -
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          We have explained that a parent's own feelings of love and affection

for   a   child, alone, do not prevent termination of parental rights.                    In re Z.P.,
994 A.2d at 1121.              Further, this Court has stated: "[A] parent's basic

constitutional right to the custody and rearing of                .   .   .   her child is converted,

upon the failure to fulfill      .   .   .   her parental duties, to the child's right to have

proper parenting and fulfillment of [the child's] potential in                        a   permanent,

healthy, safe environment."                  In re B.,N.M.,   856 A.2d 847, 856 (Pa. Super.

2004) (internal citations omitted). It is well -settled that "we will not toll the

well-being and permanency of [a child] indefinitely."                           In re Adoption of
C.L.G., 956 A.2d at 1007 (citing                   In re Z.S.W.,      946 A.2d 726, 732 (Pa.

Super. 2008) (noting that            a       child's life "simply cannot be put on hold in the

hope that [a parent] will summon the ability to handle the responsibilities of

parenting.")).

          After   a   careful review of the record in this matter, we find the record

supports the trial court's factual findings, and the court's conclusions are not

the result of an error of law or an abuse of discretion.                        In re Adoption of
S.P., 47 A.3d at 826-827. There was sufficient, competent evidence in the

record for the trial court to find the grounds for termination of parental

rights under section 2511(a)(2), due to parental incapacity that cannot be

remedied.         There was also sufficient, competent evidence in the record for

the trial court to find that Child's best interests are served by her foster

mother, and that no bond exists between Child and Father such that Child


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would suffer permanent emotional harm from the termination of Father's

parental rights. We therefore affirm the order terminating Father's parental

rights with regard to Child under section 2511(a)(2) and (b).

        Decree and order affirmed.

Judgment Entered.




J seph D. Seletyn,   Es   .


Prothonotary


Date: 4/4/2017




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