J-S75015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.D.L. A/K/A M.L.,          IN THE SUPERIOR COURT OF
A MINOR                                               PENNSYLVANIA




APPEAL OF: A.B., FATHER

                                                     No. 1994 EDA 2014


                    Appeal from the Decree June 19, 2014
            In the Court of Common Pleas of Philadelphia County
              Family Court at No(s): CP-51-AP-0000206-2014
                                     CP-51-DP-0002277-2012
                                     FID: 51-FN-003419-2012

BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                          FILED JANUARY 16, 2015

      Appellant, A.B. (Father) appeals from the June 19, 2014 decree

involuntarily terminating his parental rights to his son, M.D.L., born in

December 2012.1 After careful review, we affirm.2

      The trial court aptly set forth the factual and procedural history of this

case as follows.




1
  By separate decrees entered on June 19, 2014, the trial court involuntarily
terminated the parental rights of M.D.L.’s mother, K.E.P. (Mother), and the
putative father, D.L. Neither K.E.P. nor D.L. filed notices of appeal, and they
are not parties to this appeal.
2
  The Child Advocate did not file an appellee brief with this Court. During
the termination hearing, the Child Advocate made a closing argument in
which she supported the involuntary termination of Father’s parental rights.
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                On December 17, 2012, the Department of
          Human Services (“DHS”) received a general
          protective service report (“GPS”) alleging that
          [M.D.L.], was exposed to illegal substances in utero
          and that [] Mother tested positive for cocaine at the
          delivery.   On December 19, 2012, Mother was
          discharged from Albert Einstein Medical Center;
          however, [M.D.L.] remained in the hospital until his
          discharge on December 20, 2012. DHS obtained an
          Order for Protective Custody (“OPC”) for [M.D.L.]
          and placed him in foster care[.]

                On January 8, 2013, [M.D.L.] was adjudicated
          dependent and committed to DHS. In a permanency
          review hearing[] held on March 26, 2013, and June
          26, 2013, the [trial] court ordered [M.D.L.] to
          remain committed to DHS. In a permanency review
          hearing held on September 18, 2013, the [trial]
          court ordered that [M.D.L.] must remain committed
          to DHS and found that [M.D.L.]’s putative father,
          D.L., was not [M.D.L.]’s biological father. In the
          same hearing the [trial] court ordered DHS to search
          for [M.D.L.]’s biological father.

                 On October 24, 2013, in a permanency review
          hearing DHS informed the [trial] court that Father
          had reached out to DHS indicating he may be the
          father. The [trial] court ordered Father to have a
          paternity test, which was scheduled to take place on
          November 6, 2013. The test’s results determined
          A.B. to be [M.D.L.]’s biological Father. Father was
          notified of the results [i]n January 2014, but a
          Family Service Plan (“FSP”) was developed for Father
          by DHS on November 11, 2013. Father’s FSP was
          mailed by DHS and received by him. Father’s FSP
          objectives were to participate in an evaluation
          assessment for drug/alcohol abuse; to comply with
          all treatment recommendations; to maintain and
          occupy suitable housing for [M.D.L.], with suitable
          space, heat and all other operable utilities; and
          provide authorization forms to allow DHS and the
          provider agency to obtain copies of the evaluations

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            and progress reports; to enroll and regularly attend
            General Equivalence Diploma classes (“GED”); or a
            job training program; to attend job counseling and
            referral sessions, to complete parenting education
            classes; and to participate in placement activities
            and visit [M.D.L.] regularly.

                  On January 21, 2014, in a permanency review
            hearing, the [trial] court found Father had not
            complied with his FSP objectives. The [trial] court
            found reasonable efforts on behalf of DHS, and
            scheduled a contested Goal Change/Termination
            hearing for April 11, 2014.

Trial Court Opinion, 8/18/14, at 1-2.

      On April 29, 2014, the Philadelphia Department of Human Services,

Children and Youth Division (DHS), filed a petition for the involuntary

termination of Father’s parental rights.   On the same date, DHS filed a

petition for a goal change to adoption. A hearing was held on the petitions

on June 19, 2014, at which time M.D.L. was 18 months old and had been in

placement since his birth. DHS presented the testimony of Latoya Hermitt,

a caseworker, and Father testified on his own behalf by telephone from the

State Correctional Institution (SCI) Chester, where he had been incarcerated

since before M.D.L.’s birth. On June 19, 2014, the trial court involuntarily

terminated Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1),

(2), (5), (8), and (b).3   On July 9, 2014, Father timely filed a notice of



3
  In addition, on June 19, 2014, the trial court changed M.D.L.’s goal to
adoption. Father does not raise any issues on appeal with respect to the
goal change order.
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appeal and a concise statement of errors complained of on appeal pursuant

to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i).      Subsequently,

on August 18, 2014, the trial court filed its Rule 1925(a) opinion.

      On appeal, Father presents the following question for our review.

            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), (2), (5) and (8)?

Father’s Brief at 4.

      We review the termination decree according 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.;
            [In re] R.I.S., 36 A.3d [567,] 572 ([Pa.] 2011)
            [(plurality)]. 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 only upon demonstration of
            manifest unreasonableness, partiality, prejudice,
            bias, or ill-will. Id.



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                   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., [supra] 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, 826–827 (Pa. 2012) (parallel citations

omitted).

     Termination of parental rights is governed by Section 2511 of the

Adoption Act, which requires a bifurcated analysis.

            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 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): determination of the
            needs and welfare of the child under the standard of

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            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.

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

23 Pa.C.S. § 2511. The burden is on the petitioner to prove by clear and

convincing evidence that the asserted statutory grounds for seeking the

termination of parental rights are valid.   In re R.N.J., 985 A.2d 273, 276

(Pa. Super. 2009).

      Instantly, we review the decree pursuant to Section 2511(a)(1) and

(b), which provide as follows.

            § 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:

                  (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.

                                     ...

            (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

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            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; see also In re B.L.W., 843 A.2d 380, 384 (Pa. Super.

2004) (en banc) (stating that, this Court need only agree with any one

subsection of Section 2511(a), in addition to Section 2511(b), in order to

affirm the termination of parental rights), appeal denied, 863 A.2d 1141 (Pa.

2004).4

      With respect to Section 2511(a)(1), “the moving party must produce

clear and convincing evidence of conduct, sustained for at least the six

months prior to the filing of the termination petition, which reveals a settled

intent to relinquish parental claim to a child or a refusal or failure to perform

parental duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008), citing

In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006).

            Once the evidence establishes a failure to perform
            parental duties or a settled purpose of relinquishing
            parental rights, the court must engage in three lines
            of inquiry: (1) the parent’s explanation for his or her


4
  Notably, Sections 2511(a)(5) and (8) do not provide a basis for the
termination of Father’s parental rights because Father was incarcerated at
the time of M.D.L.’s placement; therefore, M.D.L. was not removed from
Father’s care. See In re C.S., 761 A.2d 1197 (Pa. Super. 2000) (en banc);
In re Z.P., 994 A.2d 1108 (Pa. Super. 2010).


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            conduct; (2) the post-abandonment contact between
            parent and child; and (3) consideration of the effect
            of termination of parental rights on the child
            pursuant to Section 2511(b).

Id., quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa.

1998).

      In S.P., our Supreme Court discussed In re Adoption of McCray,

331 A.2d 652 (Pa. 1975), a case wherein the Court considered the issue of

the   termination of parental rights     of incarcerated persons involving

abandonment, which is currently codified at Section 2511(a)(1). The S.P.

Court stated the following.

            Applying in McCray the provision for termination of
            parental rights based upon abandonment, now
            codified as § 2511(a)(1), we noted that a parent
            “has an affirmative duty to love, protect and support
            his child and to make an effort to maintain
            communication and association with that child.”
            [McCray, supra] at 655. We observed that the
            father’s incarceration made his performance of this
            duty “more difficult.” Id.

S.P., supra at 828. The S.P. Court continued by stating the following.

                  [A] parent’s absence and/or failure to support
                  due to incarceration is not conclusive on the
                  issue of abandonment. Nevertheless, we are
                  not willing to completely toll a parent’s
                  responsibilities during his or her incarceration.
                  Rather, we must inquire whether the
                  parent has utilized those resources at his
                  or her command while in prison in
                  continuing a close relationship with the
                  child. Where the parent does not exercise


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                  reasonable firmness in declining to yield to
                  obstacles, his other rights may be forfeited.

            [McCray, supra] at 655 (footnotes and internal
            quotation marks omitted).

Id. (emphasis added); see also In re B.,N.M., 856 A.2d 847, 855 (Pa.

Super. 2004) (internal citations omitted) (stating that a parent does not

perform his or her parental duties by displaying a “merely passive interest in

the development of the child”), appeal denied, 872 A.2d 1200 (Pa. 2005).

      With respect to Section 2511(b), this Court has explained the requisite

analysis as follows.

            Subsection 2511(b) focuses on whether termination
            of    parental    rights  would    best   serve   the
            developmental, physical, and emotional needs and
            welfare of the child. In In re C.M.S., 884 A.2d
            1284, 1287 (Pa. Super. 2005), this Court stated,
            “Intangibles such as love, comfort, security, and
            stability are involved in the inquiry into the needs
            and welfare of the child.” In addition, we instructed
            that the trial court must also discern the nature and
            status of the parent-child bond, with utmost
            attention to the effect on the child of permanently
            severing that bond. Id. However, 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 K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
            2008). Accordingly, the extent of the bond-effect
            analysis necessarily depends on the circumstances of
            the particular case. Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

      On appeal, Father argues that DHS failed to prove by clear and

convincing evidence that he “refused or failed to perform parental duties”

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pursuant to Section 2511(a)(1).        Specifically, Father asserts that he

“attempted to utilize the resources available to him in prison in an effort to

pursue a relationship with his child, notwithstanding the fact that Father’s

paternity was just confirmed in January of 2014.         In fact, Father has

attempted to establish a relationship since he presented himself to DHS as a

possible father in August of 2013[.]” Father’s Brief at 12. Upon review, we

discern no abuse of discretion by the trial court in terminating Father’s

parental rights pursuant to Section 2511(a)(1).

      The testimonial evidence reveals that M.D.L. was placed in the custody

of DHS upon birth in December 2012, at which time Father was incarcerated.

N.T., 6/19/14, at 7, 17. DHS believed that another man, D.L., was M.D.L.’s

natural father until Father advised by letter in August of 2013, that he could

be M.D.L.’s father.    Id. at 7-8.    Latoya Hermitt, the DHS caseworker,

testified that Father’s paternity test was scheduled for November 6, 2013.

Id. at 14.    It is undisputed that Father learned the paternity test result

confirming his parentage in January 2014. Trial Court Opinion, 8/18/14, at

4; N.T., 6/19/14, at 14. However, Father testified he learned Mother was

pregnant before he became incarcerated.       N.T., 6/19/14, at 18.    Father

testified on cross-examination by the Child Advocate as follows.

             Q. So you said you had a conversation with mom
             when she was pregnant?

             A. Yes, that was before she even was showing….

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             Q. But at that point you obviously knew it was a
             possibility that you were the father?

             A. She was with other dudes, I was with other
             females, you know, … she came to me, I told her, I
             said, if [the unborn child is] mine I will take care of
             him.

Id. at 19.

        The trial court found Father’s conduct warranted termination pursuant

to Section 2511(a)(1) because, in part, “[i]t took Father eight months from

the birth of his son before he decided to contact DHS to request a paternity

test, although he knew there was a good possibility he was the [f]ather due

to his conversation with [M]other during her pregnancy.”               Trial Court

Opinion, 8/18/14, at 9. We agree. Moreover, Father was not relieved of his

parental duties before his parentage was confirmed by the paternity test.

        The testimonial evidence reveals that Father failed to perform his

parental duties within the first eight months of M.D.L.’s life and all of the

months thereafter. Hermitt testified that Father has never sent any cards to

M.D.L., including, but not limited to, M.D.L.’s first birthday. N.T., 6/19/14,

at 13.    Further, Father never asked to have visits with M.D.L., has never

asked how M.D.L. is doing, and he has never provided financial support for

M.D.L. Id. at 9, 13. Father requested a picture of M.D.L. one time, in May

2014.      Id. at 9.    As such, the testimonial evidence overwhelmingly

demonstrates that Father failed to perform his parental duties during

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M.D.L.’s entire life, which was in excess of the requisite six-month period

prior to the filing of the termination petition.        Rather, the evidence

demonstrates that, when M.D.L. was eight months old, Father started to

display a “merely passive interest in the development of” M.D.L., which does

not satisfy his parental duties. See B.,N.M., supra.

      Father testified he became incarcerated near the end of 2013, for a

crime involving controlled substances, and his maximum sentence is June

2015. N.T., 6/19/14, at 17, 19. Father testified that, if he is released on

parole, he will reside in a halfway house. Id. at 17-18. Father testified he

completed a drug program while in prison, and he has signed up in prison

for a parenting class. Id. at 20. Father testified, “I want to step up and be

the father of this kid, like, you know, take care of him.” Id. at 18.

      We are unpersuaded by Father’s desire to start performing his parental

duties when M.D.L. was eighteen months of age, after M.D.L. has lived all of

those months with his foster mother, with whom Hermitt testified M.D.L. is

bonded. Id. at 11-12. In contrast, Hermitt testified that M.D.L. does not

know Father at all. Id. at 11. Based on the foregoing, we conclude that the

trial court properly terminated Father’s parental rights pursuant to Section

2511(a)(1).

      In light of the requisite bifurcated analysis in involuntary termination

cases, we next review the decree pursuant to Section 2511(b). With respect


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to the relevant bond analysis, our Supreme Court stated that, “[c]ommon

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.” In re T.S.M., 71 A.3d 251, 268 (Pa. 2013)

(citation omitted). Moreover, the Court directed that, in weighing the bond

considerations pursuant to section 2511(b), “courts must keep the ticking

clock of childhood ever in mind.” The Court observed that, “[c]hildren 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.

      As mentioned above, in this case, M.D.L. does not know Father. N.T.,

6/19/14, at 11. M.D.L. shares a bond with his foster mother, to whom he

looks to meet his needs. Id. at 11-12. Hermitt testified that M.D.L. would

not suffer any irreparable harm if Father’s parental rights are terminated

because M.D.L. “has never met his father or had any contact with him.” Id.

at 12-13. As such, we conclude that the testimonial evidence supports the

trial court’s decision that terminating Father’s parental rights would best

serve the developmental, physical, and emotional needs and welfare of

M.D.L.

      Based on the foregoing, we conclude the trial court did not abuse its

discretion or commit an error of law when it involuntarily terminated Father’s


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parental rights pursuant to Section 2511(a)(1) and (b).     See S.P., supra.

Accordingly, we affirm the trial court’s June 19, 2014 decree.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/16/2015




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