J-A23028-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: K.M.S. : IN THE SUPERIOR COURT OF
' PENNSYLVANIA
APPEAL OF: J.M.S., BIRTH FATHER : NO. 1858 WDA 2015

Appeal from the Decree October 23, 2015
In the Court of Common Pleas of Westmoreland County
Orphans' Court at No: No. 7 of 2015

BEFORE: LAZARUS, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 08, 2016

J.M.S. (“Father") appeals from the decree entered October 23, 2015,
in the Court of Common Pleas of Westmoreland County, which involuntarily
terminated his parental rights to his minor son, K.M.S. (“Child”), born in
October of 2012.1 After careful review, we affirm.

The orphans' court summarized the relevant factual and procedural

history of this case as follows.

This matter stems from an underlying dependency case at
No. CP-65-DP-166-2013 . . . . On October 18, 2013, the

 

* Retired Senior Judge assigned to the Superior Court.

1 Child's mother, E.F., executed a consent to adoption form on October 21,
2014, and Child's presumptive father, M.F., executed a consent to adoption
form on January 23, 2015. The orphans' court entered decrees confirming
the consents of E.F. and M.F. and terminating their parental rights on
October 23, 2015. E.F. and M.F. have not filed briefs in connection with this
appeal, nor have they filed their own separate appeals.

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Westmoreland County Children's Bureau (the “Agency”) took
emergency custody of the Child, following [the] revelation that
the Child was left home alone by [Father] and the Child's birth
mother, at a time when the Child was approximately one []year
old. [Father's] leaving the residence was precipitated by a
Protection from Abuse Order, obtained by the Child's natural
mother, against [Father]. The Child has been in foster care from
that point onward, and was adjudicated dependent on November
1, 2013. . . .

Orphans' Court Opinion, 6/24/16, at 1.

Father was incarcerated for burglary following Child's adjudication of
dependency in November of 2013. N.T., 9/17/15, at 49. Father had several
visits with Child during this period of incarceration. Id. at 40-41. Following
his release in March of 2014, Father continued to participate in visits and
received parenting instruction. Id. at 16-17. However, Father disappeared
in the summer of 2014. Id. at 17, 26. Father did not resurface until he was
incarcerated for robbery in October of 2014. Id. at 18, 27.

On February 4, 2015, the Agency filed a petition for involuntary
termination of Father's parental rights to Child. The orphans' court held a
termination hearing on September 17, 2015. Following the hearing, on
October 23, 2015, the court entered its decree terminating Father's parental
rights. Father timely filed a notice of appeal on November 20, 2015, along

with a concise statement of errors complained of on appeal.2

 

2 On May 18, 2016, a prior panel of this Court entered a judgment order
remanding this case to the orphans' court. See In re Adoption K.M.S.,
2016 Pa. Super. Unpub. LEXIS 1736, 2016 WL 2908414 (Pa. Super. 2016)
(unpublished judgment order). The panel explained that it was unable to

review Father's claims because the orphans' court failed to prepare an
(Footnote Continuec/ Next Page)

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Father now raises the following issues for our review.

I. Whether, based upon the law and the facts of this case, the
[orphans'] court erred in determining that [Father's] current
incapability of performing parental duties cannot or will not be
remedied by [Father] pursuant to 23 Pa.C.S.A. § 2511(a)(2)?

II. Whether, based upon the law and the facts of this case, the
[orphans'] court erred in terminating [Father's] parental rights
based solely on his incarceration?

III. Whether, based upon the law and the facts of this case, the
[orphans'] court erred in determining that the conditions which
led to the removal or placement of the children [sic] continue to
exist under 23 Pa.C.S.A. § 2511(a)(5), and that [Father] cannot
or will not remedy the conditions which led to the removal or
placement within a reasonable period of time under 23 Pa.C.S.A.
§ 2511(a)(5)?

IV. Whether, based upon the law and the facts of this case, the
[orphans'] court erred in determining that conditions which led
to the removal or placement of the child continue to exist under
23 Pa.C.S.A. § 2511(a)(8)?

V. Whether, based upon the law and the facts of this case, the
[orphans'] court erred in determining that termination of
parental rights serves the needs and welfare of the child under
23 Pa.C.S.A. § 2511(b)?

Father's Brief at 9-10.

I. Whether, based upon the law and the facts of this case, the
[orphans'] court erred in finding no bond existed between Father
and his child?

(Footnote Continued)

opinion explaining its decision to terminate Father's parental rights. The
panel directed the orphans' court to file an opinion within thirty days, and
provided the parties with the opportunity to file supplemental briefs. The
orphans' court complied with the judgment order by filing an opinion on June
24, 2016, and both Father and the Agency have filed supplemental briefs.

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II. Whether, based upon the law and the facts of this case, the
[orphans'] court improperly terminated [Father's] parental rights
based on environmental factors which were beyond the control
of the father?

III. Whether, based upon the law and the facts of this case, the
[orphans'] court erred in determining that termination of
parental rights serves the needs and welfare if the child?

Father's Supplemental Brief at 9.

We consider Father's claims 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
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

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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).

In this case, the orphans' court terminated Father's parental rights
pursuant to Sections 2511(a)(2), (5), (8), and (b). We need only agree with
the orphans' court as to any one subsection of Section 2511(a), as well as
Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here,
we analyze the court's decision to terminate under Sections 2511(a)(2) and
(b), which provide as follows.

(a) Genera| ru|e.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:

>l<>l<>l<

(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.

>l<>l<>l<

(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

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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)(2), (b).

We first address whether the orphans' court abused its discretion by

terminating Father's parental rights pursuant to Section 2511(a)(2).

In order to terminate parental rights pursuant to 23 Pa.C.S.A.

§ 2511(a)(2), the following three elements must be met: (1)

repeated and continued incapacity, abuse, neglect or refusal; (2)

such incapacity, abuse, neglect or refusal has 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.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted)). “The grounds for termination 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) (citations omitted).

Instantly, the orphans' court found that Father's repeated and
continued parental incapacity has caused Child to be without essential
parental care, control, or subsistence, and that Father cannot, or will not,
remedy the conditions and causes of this incapacity. The court reasoned

that Father is incarcerated, and will remain incarcerated for a significant

period of time. Orphans' Court Opinion, 6/24/16, at 9. Even when Father is

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released from incarceration, the court observed, he will have no stable
housing, no job, and will be at a high risk for relapsing into drug addiction
and/or violating his parole. Id. at 9-10. The court further emphasized that
Father did little to achieve reunification with Child when not incarcerated.
Id. at 9. Father visited with Child sporadically, failed to comply with
services, and engaged in substance abuse and other criminal activities. Id.

Father argues that the orphans' court erred by terminating his parental
rights, because he will be able to remedy the causes of his parental
incapacity. Father's Brief at 17-19. Father contends that he visited with
Child as much as possible during Child's dependency, and participated in
parenting instruction. Id. at 18-19. Father suggests that his failure to
obtain additional services was due to being placed on a wait list while
incarcerated. Id. at 18, 20. Father asserts that he will be eligible for parole
upon completion of a boot camp program, and that he will participate in
drug and alcohol treatment. Id. at 19. In addition, Father argues that the
orphans' court erred by terminating his parental rights based solely on his
incarceration. Id. at 19-21.

After carefully examining the record in this matter, we conclude that
the orphans' court did not abuse its discretion by involuntarily terminating
Father's parental rights to Child. During the termination hearing, the Agency
presented the testimony of caseworker, Bethany Lukart. With respect to

Father's reunification objectives, Ms. Lukart testified that Father was asked

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to participate in parenting instruction, to undergo a mental health evaluation
and comply with any recommended treatment, to undergo a drug and
alcohol evaluation and comply with any recommended treatment, and to
obtain stable and appropriate housing. N.T., 9/17/15, at 23-24. Ms. Lukart
reported that Father has failed to comply with these objectives almost
completely. Id. at 25. “There was a brief period in May [of 2014] where he
did participate in several parenting sessions and visitation, but that was all."
Id. Father has not successfully completed parenting instruction, undergone
a mental health or drug and alcohol evaluation, or obtained appropriate
housing for Child. Id. at 24-25.

Concerning visitation with Child, Ms. Lukart testified that Father was
not participating in visits at the time she was assigned to this case in
September of 2014. Id. at 21, 26. Father's whereabouts were unknown,
and he had not been heard from in “several months." Id. at 26. Ms. Lukart
was not able to locate Father until he was incarcerated in October of 2014.
Id. at 27. Father's visits with Child were reinstituted in November of 2014,
but Father was not able to have a visit until January of 2015 because he was
“in the hole" at Westmoreland County Prison. Id. at 29. Father then had
hour-long visits twice per month at Westmoreland County Prison from
January of 2015 until May 2, 2015. Id. at 30. Father's visits ended because

he was transferred to a different facility. Id. Currently, Father is

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incarcerated at SCI Houtzdale. Id. at 31. He is serving a sentence of three
to ten years' incarceration, which he received on March 20, 2015. Id. at 22.

Accordingly, the record supports the finding of the orphans' court that
Father is incapable of parenting Child, and that Father cannot, or will not,
remedy his parental incapacity. Since Child entered foster care in October of
2013, Father has done next to nothing to complete the objectives necessary
to be reunited with Child. Moreover, Father engaged in criminal activity
during Child's dependency, which resulted in a lengthy period of
incarceration. While Father claimed during the termination hearing that he
would be attending a boot camp program starting on October 28, 2015, and
that he would be released six months later, it was within the court's
discretion to reject this testimony, and to conclude that the possibility of an
early release should not prevent the termination of Father's parental rights.
See N.T., 9/17/15, at 39. As observed by the orphans' court, there is no
guarantee that Father will complete boot camp successfully. Orphans' Court
Opinion, 6/24/16, at 9. Even assuming that Father does complete boot
camp and is released early, he will be nowhere near ready to care for Child,
and will be at a high risk for violating his parole or relapsing into illegal drug

use.3 Id. at 9-10.

 

3 Although not discussed by Ms. Lukart, Father admitted that he is addicted

to Suboxone and began using heroin during Child's dependency “because my
(Footnote Continuec/ Next Page)

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In addition, we reject Father's argument that the orphans' court
impermissibly terminated his parental rights based solely on the fact of his
incarceration. In its opinion, the orphans' court found that Father's
incarceration was by itself a sufficient reason to terminate his parental
rights. Orphans' Court Opinion, 6/24/16, at 9 (citing In re Adoption of
S.P., 47 A.3d 817 (Pa. 2012)). However, the court hastened to add that its
decision is supported by Father's conduct while not incarcerated, including
Father's failure to comply with reunification services, sporadic visitation with
Child, drug use, and commission of other serious criminal offenses. Id. It is
clear that the orphans' court did not terminate Father's parental rights solely
because he is incarcerated.

Further, it is now well-settled that “a parent's incarceration is relevant
to the section (a)(2) analysis and, depending on the circumstances of the
case, it may be dispositive of a parent's ability to provide the ‘essential
parental care, control or subsistence' that the section contemplates." In re
A.D., 93 A.3d 888, 897 (Pa. Super. 2014) (discussing In re Adoption of
S.P., supra). Even if the orphans' court had relied solely on Father's
incarceration in order to terminate his parental rights under Section
2511(a)(2), it would not have been an abuse of discretion given the facts of

this case.
(Footnote Continued)

baby's mother was using it, and it made me feel like I had to use it to
communicate with her again . . . N.T., 9/17/15, at 51, 58.

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We next consider whether the orphans' court abused its discretion by
terminating Father's parental rights pursuant to Section 2511(b). We have
discussed our analysis under Section 2511(b) as follows.

Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, Section 2511(b) does not explicitly require a bonding
analysis and the term ‘bond' is not defined in the Adoption Act.
Case law, however, provides that analysis of the emotional bond,
if any, between parent and child is a factor to be considered as
part of our analysis. 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. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.

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 the instant matter, the orphans' court found that terminating
Father's parental rights would best serve the needs and welfare of Child.
The court emphasized that Father presently is unable to care for Child, and
likely will not be able to care for Child even upon his release from

incarceration. Orphans' Court Opinion, 6/24/16, at 9-10. The court further

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reasoned that Child no longer recognizes Father, and that Child and Father
do not share a parent/child bond. Id. at 10.

Father argues that Child is bonded with him. Father's Brief at 26;
Father's Supplemental Brief at 16-17, 20. Father asserts that Child was
excited to attend his visits with Father, and referred to him as “Dad” or
“Daddy.” Father's Brief at 26; Father's Supplemental Brief at 17, 20. Father
further contends that the orphans' court violated Section 2511(b) by
terminating his parental rights based on environmental factors beyond his
control. Father's Supplemental Brief at 17-19. Here, Father again argues
that the court terminated his parental rights based solely on the fact of his
incarceration. Id. at 19. Father emphasizes that he visited with Child and
endeavored to participate in services while incarcerated. Id.

With respect to Child's needs and welfare, the Agency presented the
testimony of Child's foster mother, M.F. (“Foster Mother"). Foster Mother
testified that Child was placed with her and her husband shortly after his
first birthday. N.T., 9/17/15, at 6-7. Concerning the quality of Father's
visits with Child, Foster Mother reported that there are no problems. Id. at
8. Foster Mother stated, “[h]e relates to him all right and [Child] does all
right, but there's no real close connection.” Id. Foster Mother explained
that Child receives speech therapy four times per week, and that Child
“treats his father like another therapist. . . . He'll bring over a book and try
to say words for him. He'll try to name things in the room, do basically the

same things he has during therapy.” Id. at 10. Foster Mother further

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testified that Child is not resistant to leaving Father at the conclusion of
visits. Id. at 11. “[T]here is no real reaction. He'll give him a hug and he'll
leave . . . and he wants to push the button on the elevator. That's his main
thing.” Id. Child refers to Foster Mother as “mommy” or “momma," and
refers to Foster Mother's husband as “dad-da." Id. at 8. In contrast, Child
has no name for Father. Id.

Thus, the record supports the finding of the orphans' court that
terminating Father's parental rights would best serve the needs and welfare
of Child. Child appears to have no parental bond with Father, and instead
views his foster parents as his parents. While Father claimed during the
termination hearing that Child referred to him as “Dad” or “Daddy" and was
excited to attend visits, the orphans' court was free to reject this testimony
as incredible. See N.T., 9/17/15, at 41. In addition, we reject Father's
argument that the orphans' court violated Section 2511(b) by terminating
his parental rights based on environmental factors that were beyond his
control. As discussed above, the court did not terminate Father's parental
rights based solely on his incarceration. Further, Father's incarceration for
robbery clearly was not beyond his control.

Accordingly, because we conclude that the orphans' court did not
abuse its discretion by involuntarily terminating Father's parental rights to
Child, we affirm the decree of the orphans' court.

Decree affirmed.

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Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 11/8/2016

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