J-S46014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: N.A.S., A MINOR              IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
APPEAL OF: A.J.R., FATHER
                                                       No. 71 EDA 2016


                   Appeal from the Decree December 14, 2015
              In the Court of Common Pleas of Philadelphia County
                 Family Court at No(s): CP-51-AP-0000855-2015


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 02, 2016

        Appellant, A.J.R. (Father), appeals from the decree involuntarily

terminating his parental rights to his daughter, N.A.S., born in October of

2013. Upon careful review, we affirm.1

        We summarize the relevant facts and procedural history as follows.

On December 24, 2013, the Philadelphia Department of Human Services,

Children and Youth Division (DHS), obtained an order of protective custody

for N.A.S. On the previous day, N.A.S. was brought by her maternal great-

grandmother and maternal aunt and admitted to St. Christopher’s Hospital

because she “was listless and not eating properly.”        Trial Court Opinion,

3/2/16, at 1.2      Upon admittance to the hospital, it was determined that
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*
    Retired Senior Judge assigned to the Superior Court.
1
  We note that the Child Advocate filed a brief in this matter in support of
the decree involuntarily terminating Father’s parental rights.
2
  The trial court’s opinion is unpaginated. For ease of reference, we have
assigned numbers to the pages of the court’s opinion.
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N.A.S. was dehydrated and hypothermic, and had an altered mental status.

Id. At that time, the identity of Father was unknown to DHS. Id. at 2.

      N.A.S. was discharged from the hospital on January 2, 2014. She was

placed in a foster home where she continued to reside at the time of the

subject proceedings.    Id. at 2.     N.A.S. was adjudicated dependent on

January 14, 2014.

      Sometime prior to January 28, 2014, M.S. (Mother) identified Father

as N.A.S.’s biological father. Id. DHS established the following Single Case

Plan (SCP) objectives for him: to comply with mental health therapy and

recommendations; to participate in anger management; to comply with

visitation with N.A.S.; to maintain housing; and to comply with Community

Umbrella Agency (CUA) services. N.T., 12/14/15, at 16. Further, the trial

court ordered Father to participate in a parenting capacity evaluation. Id.

      On November 30, 2015, DHS filed a petition for the involuntary

termination of Father’s and Mother’s parental rights pursuant to 23 Pa.C.S.A.

§ 2511(a)(1), (2), (5), (8), and (b). A hearing was held on December 14,

2015, during which DHS presented the testimony of Melonie Handberry, the

Asociación Puertorriqueñ̃̃̃os en Marcha (APM) CUA case management

supervisor, and Julie Cannon, the APM CUA case aide, who supervised

Father’s visits with N.A.S. Father testified on his own behalf.

      By decree dated and entered on December 14, 2015, the trial court

involuntarily terminated Father’s parental rights pursuant to 23 Pa.C.S.A. §

2511(a)(1), (2), and (b). On January 5, 2016, Father timely filed a notice of

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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) and (b). 3         The

trial court filed a Rule 1925(a) opinion on March 2, 2016.

       On appeal, Father presents the following issues for our review:

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

       2. Whether the trial court committed reversible error, when it
       involuntarily terminated [F]ather’s parental rights without giving
       the primary consideration to the effect that the termination
       would have on the developmental, physical and emotional needs
       of the child as required by the [A]doption [A]ct, 23 Pa.C.S.A. §
       2511(b)[?]

       3. Whether the trial court erred because the evidence was
       overwhelming and undisputed that [F]ather demonstrated a
       genuine interest and sincere, persistent, and unrelenting effort
       to maintain a parent-child relationship with his child[?]

Father’s brief at 8.

       We consider Father’s issues mindful of our well-settled standard of

review.

       The standard of review in termination of parental rights cases
       requires appellate courts to accept the findings of fact and
       credibility determinations of the trial court if they are supported
       by the record. If the factual findings are supported, appellate
       courts review to determine if the trial court made an error of law
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3
  By separate decree entered on the same date, the trial court involuntarily
terminated Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), (8), and (b). Mother did not appeal from the decree.



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      or abused its discretion. A decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely
      because the record would support a different result. We have
      previously emphasized our deference to trial courts that often
      have first-hand observations of the parties spanning multiple
      hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis.

      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 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). The

burden is upon 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).




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     Instantly, the trial court terminated Father’s parental rights pursuant

to Section 2511(a)(1), (2), and (b), which provide as follows:

     (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.

                                       ...

      (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(a)(1), (2), (b).

     To meet the requirements of 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


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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)). The court must then consider “the parent’s explanation for

his or her conduct” and “the post-abandonment contact between parent and

child” before moving on to analyze Section 2511(b).         Id. (quoting In re

Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998)).

      This Court has explained that a parent does not perform his or her

parental duties by displaying a “merely passive interest in the development

of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (quoting

In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003)). Rather, “[p]arental

duty requires that the parent act affirmatively with good faith interest and

effort, and not yield to every problem, in order to maintain the parent-child

relationship to the best of his or her ability, even in difficult circumstances.”

Id. (citation omitted).

      To terminate parental rights pursuant to 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 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


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M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003).       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).

A parent’s vow to cooperate, after a long period of uncooperativeness

regarding the necessity or availability of services, may properly be rejected

as untimely or disingenuous. Id.

      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).

      In his first and third issues on appeal, Father argues that the evidence

was insufficient to terminate his parental rights pursuant to Section 2511(a).

Specifically, Father asserts that he has completed all of his SCP objectives,

and that he has the present capacity to care for N.A.S. We disagree.

      The trial court found as follows.


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      [P]rior to May 30, 2015, Father had unsupervised overnight
      visits with the child. The [CUA supervisor] testified that on or
      about May 30, 2015, while in the care of [F]ather the child
      received a cigarette burn – a press burn, to her face. The burn
      was not reported by [F]ather to DHS or to the foster parent[].
      [F]ather did not seek medical treatment for the child’s burn. The
      [CUA supervisor] testified that [F]ather did not appear to know
      how the child received the burn. [F]ather’s visits reverted back
      to supervised visits because of the burn incident. The CUA [case
      aide] testified that [F]ather failed to attend all of the supervised
      visits because of inclement weather and transportation despite
      having tokens provided to him. Furthermore, the CUA worker [ ]
      testified that it would not be appropriate, based on her
      interactions with [F]ather, for the child to have unsupervised
      visits with him.

Trial Court Opinion, 3/2/16, at 4 (citations to record omitted).

      In addition, the court found that Father was aware of his SCP

objectives, but that he “was not fully compliant with any of them.” Id. at 3

(citations to record omitted). The trial court explained:

      [F]ather did not complete anger management classes. He was
      referred for anger management classes numerous times.
      [F]ather expressed to the DHS social worker that he believed
      that he did not need anger management. Furthermore, [F]ather
      has not been compliant with his mental health treatment and
      medication management goals.          Moreover, [F]ather did not
      complete his parenting capacity evaluation. The DHS worker
      personally delivered an appointment letter for the parenting
      capacity evaluation. She also called [F]ather and texted him to
      remind him to attend the evaluation, however, [F]ather did not
      go to the appointment or complete the evaluation. Lastly, both
      the DHS social worker and the CUA worker testified that [F]ather
      did not consistently visit with the child.

Id. (citations to record omitted).    The testimonial evidence supports the

court’s findings.




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          Ms. Handberry testified that, at an unspecified time in this case, Father

had been compliant with his SCP objectives, and he was granted overnight

visits.     N.T., 12/14/15, at 19.      She explained that his visits reverted to

supervised following an incident on May 30, 2015, when N.A.S., then

approximately nineteen months, sustained a pressed cigarette burn to her

face while in Father’s care during an overnight visit.         Id. at 19-20.    She

testified that Father “seemed to lack awareness of how she got the burn[,]

and he also didn’t know how to treat her or to take her for medical care.”

Id. at 20. In fact, Ms. Handberry testified she interviewed Father and his

paramour twice, “and the stories [were] not consistent.            And neither one

seemed to know how [N.A.S.] got the burn.”              Id.   Further, she testified

Father relied on his paramour with respect to how to treat the burn, and his

paramour “told him that Neosporin is fine and she’d be okay.” Id. at 21.

          Ms. Handberry testified she is concerned about Father’s parenting

capacity due, in large part, to the burn incident, and by his acknowledgment

that his paramour would be the primary caretaker of N.A.S. if the child is

returned to him. Id. at 22, 24. Further, she testified Father is inconsistent

with his supervised visitation.         Id. at 22-23.   She testified that Father

spends time in New York.4           Id. at 22.   She testified, at other times, he
____________________________________________


4
  Ms. Cannon, the case aide who supervises Father’s visits with N.A.S.,
testified that Father visits New York “quite often[,]” but he has never
mentioned how he gets there. N.T., 12/14/15, at 32-33.




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cancels visits because of rain. Id. at 23. Ms. Handberry testified, “[Father]

was very concerned about getting wet and the child getting wet as well. We

explained to him that there are umbrellas, coats, hoods, you can still make

the visit and he declined to do the visit.” Id. Father acknowledged on direct

examination that he has missed visits “[d]ue to the rain. I’m worried about

my health, getting sick including my daughter’s health, getting sick.” Id. at

38. Since the last court date in January of 2015, Father scheduled twenty

supervised visits, but he attended only twelve.5 Id. at 29.

       Besides not complying with his supervised visitation, Ms. Handberry

testified that Father has never attended anger management classes, and

that “he has expressed to me as well as my staff that he does not believe he

needs anger management.”6             Id. at 17.   On direct examination, Father



____________________________________________


5
  Ms. Cannon testified that Father is permitted one visit per week, but that
he averages two visits per month. N.T., 12/14/15, at 30-31. She testified
that his reasons for not attending visits is “usually centered around
transportation.” Id. at 31. Further, Ms. Cannon testified she has explained
to Father that she can give him transportation tokens. Id. She agreed on
direct examination that Father still does not seem to understand that he can
receive tokens and get to the visit. Id. In addition, Ms. Cannon testified
that Father has lost transportation tokens. Id.
6
  Ms. Handberry testified that the anger management objective was assigned
to Father because he “can be difficult to redirect and he can get easily
frustrated and angered when being told information that he doesn't agree
with. . . . [I]t was concerning because we believe that if there were any
frustrations with [N.A.S.]’s care [F]ather wouldn’t be able to address it and
handle it.” N.T., 12/14/15, at 17.



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testified that he did not attend anger management classes because they

were held “downtown[,]” and he lives in “Feltonville.” Id. at 36.

      In addition, Ms. Handberry testified that, at an unspecified time,

Father was consistent with mental health treatment. Id. at 18. However, in

August of 2015, after the burn incident in May of that year, the court

ordered Father to obtain a parenting capacity evaluation and to attend

mental health treatment consistently.        Id. at 18-19, 22.       Ms. Handberry

testified that Father has not been compliant with the mental health program

since October of 2015, including not completing the parenting capacity

evaluation,   individual   therapy    sessions,   and   medication    management

appointments. Id. at 18, 28.         Father testified that the parenting capacity

evaluation has been rescheduled, and that he has been prescribed

medication for his anger, which he takes every day. Id. at 36-38.

      Based on the foregoing testimonial evidence, we discern no abuse of

discretion by the trial court in terminating Father’s parental rights pursuant

to Section 2511(a)(1) and (2). The evidence overwhelmingly demonstrates

that, for at least six months preceding the filing of the termination petition,

that is, since at least May of 2015, Father has failed to perform his parental

duties.   Further, the evidence demonstrates that Father’s repeated and

continued incapacity or refusal to parent and to comply with his SCP

objectives has caused N.A.S. to be without essential parental care, control,

or subsistence necessary for her physical or mental well-being. At the time

of the termination hearing, N.A.S. had been in placement for more than

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twenty-three months. We discern no abuse of discretion by the trial court in

concluding that Father’s incapacity or refusal to parent and to comply with

his SCP objectives cannot or will not be remedied. Therefore, Father’s first

and third issues on appeal fail.

      In his second issue, Father argues that the trial court erred in

terminating his parental rights pursuant to Section 2511(b). This Court has

emphasized, in part:

      While a parent’s emotional bond with his or her child is a major
      aspect of the subsection 2511(b) best-interest analysis, it is
      nonetheless only one of many factors to be considered by the
      court when determining what is in the best interest of the child.

            [I]n addition to a bond examination, the trial court
            can equally emphasize the safety needs of the child,
            and should also consider the intangibles, such as the
            love, comfort, security, and stability the child might
            have with the foster parent.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and

citations omitted)). In addition, 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).

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.”     Id. at 269.     The T.S.M. Court observed that,

“[c]hildren are young for a scant number of years, and we have an


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

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

      Ms. Handberry testified that N.A.S. resides with a kinship care foster

parent, whom she refers to as “mommy,” and that it is a pre-adoptive

placement.      N.T., 12/14/15, at 12-13.        She testified that N.A.S. is “very

bonded” to her foster parent.     Id. at 26.       Moreover, Ms. Cannon testified

that N.A.S. does not have a bond with Father.           Id. at 33. Ms. Handberry

testified that N.A.S. would not suffer emotional harm if Father’s parental

rights were terminated because she “is in a wonderful home. She’s bonded

and she’s thriving. . . .” Id. at 26.

      To the extent that Father asserts terminating his parental rights will

not serve the needs and welfare of N.A.S. because it will not “facilitate

putting another bond in its place,” we disagree. Father’s brief at 16. Father

presents no statutory or case authority to support his assertion, nor are we

aware of any. The foregoing testimonial evidence demonstrates that N.A.S.

has a parent-child bond with her foster mother, and that she has no bond

with Father. As such, we discern no abuse of discretion by the trial court in

concluding that involuntarily terminating Father’s parental rights will serve

the developmental, physical, and emotional needs and welfare of N.A.S.

Accordingly, we affirm the decree pursuant to 23 Pa.C.S.A. § 2511(a)(1),

(2), and (b).

      Decree affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/2/2016




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