J-S16033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.J.C., A MINOR             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

APPEAL OF: C.C., FATHER

                                                     No. 1794 MDA 2014


                  Appeal from the Decree September 29, 2014
               In the Court of Common Pleas of Lancaster County
                     Orphans' Court at No(s): 1370 of 2014


BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                               FILED APRIL 17, 2015

       C.C. (“Father”) appeals the decree entered September 29, 2014, in the

Lancaster County Court of Common Pleas, involuntarily terminating his

parental rights to his son, D.J.C. (“Child”), born in May of 2011.1 On appeal,

Father argues the trial court erred in finding Lancaster County Children and

Youth Services (“CYS”) met its burden of proving termination of his parental

rights was warranted pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and

(b). For the reasons that follow, we affirm.2

____________________________________________


1
    By the same decree, the orphans’ court involuntarily terminated the
parental rights of Child’s mother, A.W. (“Mother”), not only to Child, but also
to his half-sister. Mother did not file a notice of appeal.
2
   Although the record and the November 16, 2014, opinion sur appeal
identify the parties by their full names, “we will identify the parties in both
(Footnote Continued Next Page)
J-S16033-15


      On July 3, 2014, CYS filed a petition to terminate the parental rights of

Father to Child. A preliminary decree was issued the same day, scheduling a

hearing for August 11, 2014. The hearing was continued and then held on

September 29, 2014.           The underlying factual history was taken from the

September termination proceeding, which is set forth as follows:

             [Child] was born [in May of 2011]. The history of his
      involvement with the Lancaster County Children and Youth
      Service Agency (Agency) goes back to 2012, after the Agency
      received a report concerning drug use by Father and [Child]’s
      mother, [A.W.] (Mother).       Although the caseworker found
      Mother and Father to be drug free on a first visit, reports
      continued to be received by the Agency, and Mother refused to
      discuss these reports with the caseworker. On November 9,
      2012, Father tested positive for opiates at a probation
      appointment.      Mother, who had accompanied him, tested
      positive also and admitted to heroin use. The Agency put a
      safety plan in place. In February of 2013, Mother, who had not
      maintained consistent contact with the Agency, was in danger of
      eviction and had welfare fraud charges pending. She was not
      complying with the safety plan.          Father, who had been
      imprisoned from November 9, 2012, to March 20, 2013, and
      from September 4, 2013 to October 9, 2013, was again in jail as
      of September 17, 2014 for two pending theft charges and a
      probation violation. He has a criminal history consisting of
      burglary, theft by unlawful taking and drug possession. There
      are outstanding warrants for his arrest in Tennessee and in
      Florida, where the county child services had taken his other two
      children, of whom he has never regained custody. He was
      indicated for physical abuse against his sister in 1998.

            Since Mother was uncooperative with the Agency and
      Father was in prison at the beginning of 2013, the Agency
      decided to remove [Child] and his sibling[, K.E.S., (“Sister”)]
      from their home. Physical custody of [Child] was taken on
                       _______________________
(Footnote Continued)

the caption and in this memorandum by their initials to preserve their
privacy.” E.W. v. T.S., 916 A.2d 1197, 1199 n.1 (Pa. Super. 2007).



                                            -2-
J-S16033-15


     February 25, 2013; he was found to be dependent and legal
     custody was obtained on March 11, 2013 by court order.
     [Child], was placed with his paternal aunt and uncle, where he
     remains. [Sister] was placed with him[.]

           Both parents were given permanency plans with a goal of
     reunification, but neither completed his or her plan. Father
     never completed his mental health goal. He has not remained
     free from drugs and misuse of alcohol. His case with Family
     Alternatives was closed because he failed to make a required
     contact with the organization. He has not remained crime free,
     has been in prison three separate times, and has had four
     probation violations.     He will have two additional years of
     probation after he is released from his latest incarceration. He
     has not completed his goal of remaining free from domestic
     violence. He has not completed his goal of learning and using
     good parenting skills; he did not start the program prior to his
     incarceration and is not in a position to do so without a positive
     recommendation from both the mental health and the drug and
     alcohol treatment providers. His goal of being financially stable
     is incomplete because of his incarceration, and the outstanding
     warrants in Florida and Tennessee make him ineligible for work
     release. As for his goal of commitment to his child, while not in
     prison he attended five visits with [Child]. The visits went well.
     While incarcerated, he wrote to the caseworker several times to
     inquire about the child’s status. He never wrote directly to
     [Child] or sent him anything, and testified at [the] hearing that
     no one ever told him he could do so and his mother thought that
     it would be better if he did not.

           Upon being released from prison, he will be working at a
     Halfway house for at least three months. He told the court that
     he believed he would then be able to provide appropriate care
     for the children, just like he did after his prior releases from
     prison.

            [Child] is doing very well with his aunt and uncle. His
     sister … also lives in the household with him. He is attending
     Head Start and fits in well with the family, which is a permanent
     resource for him.

Opinion Sur Appeal, 11/16/2014, at 1-3 (footnotes and record citations

omitted).

                                   -3-
J-S16033-15


      A decree was issued the same day as the hearing, terminating Father’s

parental rights to Child. Father timely filed a notice of appeal and a concise

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

1925(a)(2)(i).

      On appeal, Father presents two issues:

      I.     Did the Court err and abuse its discretion in terminating
            the parental rights of Appellant Father in that the Appellant
            Father was incarcerated during a significant period of time
            during the pendency of the underlying juvenile dependency
            action, but Appellant Father nevertheless utilized the
            resources available to him in continuing a relationship with
            his child, as Appellant Father forwarded written
            correspondence to the Children and Youth Agency case
            worker that inquired about the well being his child?

      II.   Did the Court err and abuse its discretion in terminating
            the rights of the Appellant Father, as termination of his
            parental rights is not in the best interests of the child and
            will not promote the physical, mental, or emotional well
            being of the child, as the Appellant Father will in the near
            future be released from prison and within a reasonable
            time be capable of performing parental duties and
            providing permanency for his child?

Father’s Brief at 7.

      We review this appeal 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., 608 Pa. 9, 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)]. As has been often
      stated, an abuse of discretion does not result merely because

                                      -4-
J-S16033-15


     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.

     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, 539 Pa. 161, 165, 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012).

     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 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


                                    -5-
J-S16033-15


      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) (citing 23 Pa.C.S.A.

§ 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, the orphans’ court terminated Father’s parental rights

pursuant to the following provisions:

      (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.

                                    ***

      (5) The child has been removed from the care of the parent by
      the court or under a voluntary agreement with an agency for a
      period of at least six months, the conditions which led to the
      removal or placement of the child continue to exist, the parent
      cannot or will not remedy those conditions within a reasonable
      period of time, the services or assistance reasonably available to
      the parent are not likely to remedy the conditions which led to
      the removal or placement of the child within a reasonable period

                                    -6-
J-S16033-15


     of time and termination of the parental rights would best serve
     the needs and welfare of the child.

                                    ***

     (8) The child has been removed from the care of the parent by
     the court or under a voluntary agreement with an agency, 12
     months or more have elapsed from the date of removal or
     placement, the conditions which led to the removal or placement
     of the child continue to exist and termination of parental rights
     would best serve the needs and welfare of the child.

                                    ***

     (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. “Parental rights may be involuntarily terminated where

any one subsection of Section 2511(a) is satisfied, along with consideration

of the subsection 2511(b) provisions.” In re Z.P., 994 A.2d 1108, 1117 (Pa.

Super. 2010).

     With respect to Section 2511(b), the requisite analysis is 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

                                    -7-
J-S16033-15


     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).

     “The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and may properly have … [his] rights terminated.” In re

B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001).

     Parental 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]
     ability, even in difficult circumstances. A parent must utilize all
     available resources to preserve the parental relationship, and
     must exercise reasonable firmness in resisting obstacles placed
     in the path of maintaining the parent-child relationship. Parental
     rights are not preserved by waiting for a more suitable or
     convenient time to perform one’s parental responsibilities while
     others provide the child with [the child’s] physical and emotional
     needs. Where a parent is incarcerated, the fact of incarceration
     does not, in itself, provide grounds for the termination of
     parental rights. However, a parent’s responsibilities are not
     tolled during incarceration. The focus is on whether the parent
     utilized resources available while in prison to maintain a
     relationship with…her child. An incarcerated parent is expected
     to utilize all available resources to foster a continuing close
     relationship with … [his] children.

In re N.M.B., 856 A.2d 847, 855 (Pa. Super. 2004), appeal denied, 872

A.2d 1200 (Pa. 2005) (citations omitted).

                                    -8-
J-S16033-15


       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Lesley

Gorbey, we conclude Father’s issues merit no relief. The orphans’ court

opinion comprehensively discusses and disposes of the questions presented.

See Opinion Sur Appeal, 11/16/2014, at 6-9 (finding: (1) Father was in jail

three times for approximately 17 months cumulatively during Child’s 3-1/2

year life; (2) Father’s efforts to remain connected with Child are lacking, in

which he wrote to the caseworker a number of times to ask about Child but

he did not communicate with Child by way of messages, cards, or gifts, and

he “seems to be concerned about his relationship with the Agency rather

than with [Child;]”3 (3) Father made no effort to remind Child of his

existence or maintain a psychological bond with Child; (4) Father has not

finished his reunification plan and certain parts cannot be started until other

sections are completed; (4) Father is a repeat criminal offender and once

released from prison, Father has not demonstrated that he will not be in

realistic position to care and provide stability for Child; and (5) termination

of Father’s parental rights is in Child’s best interests because (a) Child barely

knows Father, (b) Child knows his aunt and uncle very well since they have

been providing for him during much of his short life, and (c) they provide a



____________________________________________


3
    Opinion Sur Appeal, 11/16/2014, at 6.



                                           -9-
J-S16033-15


“loving and stable family”4).         We agree with the court’s rationale while

emphasizing the court’s concern that despite Father’s numerous promises

that he will put his life together once he is released from jail, “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.” In re Z.S.W., 946 A.2d

726, 732 (Pa. Super. 2008) (citation and quotation marks omitted). 5,6

Accordingly, we affirm on the basis of the orphans’ court opinion.

       Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2015




____________________________________________


4
    Id. at 9.
5
   It bears mentioning that while Father does not specifically attack any
provision of Section 2511(a), the court’s analysis satisfies Subsection
2511(a)(8).
6
   Furthermore, we note Child’s Guardian ad Litem filed an appellate brief,
joining in the appellee brief filed by CYS, requesting that this Court affirm
the termination order on appeal.



                                          - 10 -
                                                                                                  Circulated 03/23/2015 09:31 AM




    IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                        ORPHANS' GOU RT DIVISION

IN THE INTEREST OF:                                                    Docket No.: 1370 of 2014

cmll-c91111·                             a minor                       SUPER CT. NO.: 1794 MDA 2014


By: Leslie Gorbey, Judge

                                             OPINION SUR APPEAL

                                               Procedural History

       A Petition to terminate the parental rights of C                     E••Jt       ~(Father)                  to

his son, D I        JI Jtllla C I            I I (~)                   was filed on July 30, 2014, and a

preliminary Decree was lssued the same day scheduling a hearing for August 11, 2014.

That hearing was continued and was held on September 29, 2014. A decree was

issued the same day terminating Father's parental rights to~·                                     Father filed an
                                                                  ..
appeal to the Pennsylvania Superior Court on October 22, 2014, pursuant to which

appeal this Opinion is being written.1

                                                  Factual History

       ~               r.-was                born on Mayl 2011. (N.T. 4)2 The history of his

involvement with the Lancaster County Children and Youth Social Service Agency

(Agency) goes back to 2012, after the Agency received a report concernlnq drug use by

Father and~                     mother, P4111111t~(Mother).                      Although the caseworker

found Mother and Father to be drug free on a first visit, reports continued to be received


       1The
             parental rights of ~mother,             A ..        't.91 were also terminated In this action, not only to
~      but to his half-sister,~                did not af)pea[
       2AII
              citations to transcript pages In this opinion refer to the hearing of September 29, 2014 only.

                                                            1
                                                                         Circulated 03/23/2015 09:31 AM




 by the Agency. and Mother refused to discuss these reports with the caseworker. (N.T.

 11-12). On November 9, 20121 Father tested positive for opiates at a probation

 appointment. Mother, who had accompanied him, tested positive also and admitted to

 heroin use. The Agency put a safety plan in place. (N.T., 12-13) In February of 2013,

 Mother, who had not maintained consistent contact with the Agency, was in danger·of

eviction and had welfare fraud charges pending. She was not complying with the safety

 plan. Father, who had been imprisoned from November 9, 2012, to March 20, 2013,

and from September 4, 2013 to October 9, 2013, was again in jail as of September 17,

2014 for two pending theft charges and a probation violation. He has a criminal history

consisting of burglary, theft by unlawful taking and drug possession. There are

outstanding warrants for his arrest in Tennessee and in Florida, where the countychild

services had taken his other two chltdren, of whom he has never regained custody. He

was indicated for physical abuse against his sister in 1998. (N.T. 14)

       Since Mother was uncooperativewith the Agency and Father was in prison at the

beginning of 2013, the Agency decided to remove DI       B   and his sibling K9, from

their home. Physical custody of D 11   (   was taken on February 251 2013; he was

found to be dependent and legal custody was obtained on March 111 2013 by court

order. D (   J , was placed with his paternal aunt and uncle. where he remains.       K-

was placed with him (N.T. 15)

       Both parents were given permanency plans with a goal of reunification, but

neither completed his or her plan. (N.T. 14-15) Father never completed his mental

health goal. He has not remained free from drugs and misuse of alcohol. His case with

Famlly Alternatives was closed because he failed to make a required contact with the

                                            2
                                                                                            Circulated 03/23/2015 09:31 AM




 organization. He has not remained crime free, has been in prison three separate times,

 and has had four probation violations. He will have two additional years of probation

 after he is released from his latest incarceration. He has not completed his goal of

 remaining free from domestic violence. He has not completed his goal of learning and

 using good parenting skills; he did not start the program prior to his incarceration and is

 not in a position to do so without a positive recommendation from both the mental

 health and the drug and alcohol treatment providers. His goal of being financially stable

 is incomplete because of his incarceration, and the outstanding warrants in Florida and

 Tennessee make him ineligible for work release. As for his goal of commitment to his

 child, while not in prison he attended five visits with Diij             I f. The visits went well.
While incarcerated, he wrote to the caseworker several times to inquire about the

child's status. He never wrote directly to~                       or sent him anything, and testified at

hearing that no one ever told him he could do so and his mother thought that it would

be better if he did not. (N.T. 32)3

          Upon being released from prison, he will be working at a Halfway house for at

least three months. He told the court that he believed he would then be able to provide

appropriate care for the children, just like he did after his prior releases from prison.

(N.T. 19-23, 33-35)

         DC     S    is doing very well with his aunt and uncle.

the household with him. He is attending Head Start and fits in well with the family,

which is a permanent resource for him. (N.T. 23)


        31n
              his 1925{b) statement, Father contended he sent correspondence to the caseworker asking about the
child or intended for the child. The latter contention was directly contradicted by his testimony.

                                                        3
                                                                          Circulated 03/23/2015 09:31 AM




        Whether a parent's parental rights to his three year old son were appropriately

terminated when Father was incarcerated for approximately seventeen months

cumulatively during his son's life, maintained no direct connection with the child during

his various incarcerations, had four probation violations during that time, was planning

to be in a halfway house for some unspecific period after his release from prison, but

had no specific job, money or settled plans to complete his reunification permanency

plan after he left there.




       Parental rights to   D- ~         Analysis

                                                were terminated pursuant to the

Pennsylvania Adoption Statute. The pertinent statutory section, 23 Pa. C.S.A. §2511,

provides 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 rellnquishing parental claim to a child or has refused or
              failed to perform parental duUes.

      (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.

      (5)    The child has been removed from the care of the parent by the court or
             under a voluntary agreement with an agency for a period of at least six
             months, the conditions which led to the removal or placement of the child
             continue to exist, the parent cannot or will not remedy those conditions
             within a reasonable period of time, the services or assistance reasonably


                                            4
                                                                         Circulated 03/23/2015 09:31 AM




              available to the parent are not likely to remedy the conditions which led to
              the removal or placement of the child within a reasonable period of time
              and termination of the parental rights would best serve the needs and
              welfare of the child.


       (8)    The child has been removed from the care of the parent by the court or
              under a voluntary agreement with an agency, 12 months or more have
              elapsed from the date of removal or placement, the conditions which led
              to the removal or placement of the child continue to exist and termination
              of parental rights wold best serve the needs and welfare of the child.

       (b) Other considerations.- The court in tenninatlng the rights of a parent shall
give primary consideration- to the developmental, physical and emotional needs and
welfare of the child ....

The party seeking the termination of parental rights bears the burden of establishing

clear and convincing evidence to do so. In Re C;M.S., 832 A.2d 457 (Pa. Super. 2003).

Clear and convincing evidence is testimony that is so "clear, direct, weighty and

convincing as to enable the trier of fact to come to a clear convictions, without

hesitance, of the truth of the precise facts in issue." In Re Adoption of J.M.M., 782 A.2d

1024, 1030 (Pa. Super. 2001), citing In Re C.S., 761 A.2d 1197, 1201 (Pa. Super.

2000). In a termination proceeding, the focus is on the conduct of the parent and

whether that conduct justifies a termination of parental rights. In Re B.,N.M., 856 A.2d

847, 854-855 (Pa. Super. 2004).     Grounds for termination can consist of lack of

capacity and not just affirmative misconduct. A parent who is incapable of performing

parental duties is just as parentally unfit as one who refuses to perform the duties. In re

Child M., 681 A.2d 793 (Pa. Super 1996)

       Father contends in his 1925(b) statement that the Court erred in terminating his

parental rights under these statutory sections. The Court does not agree.



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          D911was          born on May.2011.      Father was in jail three times for

 approximately seventeen months cumulatively during~                      3-1/2 year life. During

 the year prior to the hearing, Father clearly had no easy avenue of contact with

 ctlllllbecause        of his incarceration.   But the Pennsylvania Superior Court has said

that "lncarceratlon does not obviate a parent's duty to exercise reasonable firmness in

maintaining a secure bond with a child. An incarcerated parent is expected to utilize

whatever resources are available to him while in prison in order to foster a continuing

close relationship with his children. In re V.E., 611 A.2d 1267 (Pa Super 1992)" An

examination of Father's efforts to remain connected with ~shows                    a substantial

lack of effort. He wrote to the caseworker a number of times to ask if        t1m" was
okay. He did not communicate with the child by way of messages or cards or gifts. He

seems to have been concerned about his relationship with the Agency rather than with

t9I          The Superior Court has been adamant that "to be legally significant, the

[post-abandonment] contact must be steady and consistent over a period of time,

contribute to the psychological health of the child, and must demonstrate a serious

intent on the part of the parent to recultivate a parent child relationship and must also

demonstrate a willingness and capacity to undertake the parental role. The parent
                                                                      .
wishing to reestablish his parental responsibilities bears the burden of proof on this

question." In re   z.e.,   994 A.2d 1108, 1119 (Pa. Super. 2010); In re A.O., 2014 PA

Super 119, 93 A.3d 888 (Pa. Super. Ct. 2014) Father did not try very hard. Proving his

interest to the caseworker was in no way the same as maintaining the bond with his

chlld.   c9II was only two years old at the time of Father's last incarceration and had

                                                 6
                                                                           Circulated 03/23/2015 09:31 AM




 no contact with him for a year. Father made no effort to remind the child of his

 existence or maintain a psychological bond with the child.

        Father assured the Court that upon his release that after 90 days In a halfway

 house, he would be in a position to provide exemplary parenting for his son. There is

 no indication of that in the record. Father will be on probation for two years; he has

violated prior probations four times, achieving returns to prison. He has not finished his

reunification plan and certain parts cannot even be started until other sections are

completed.   Even if Father should be able to reach a position to have his child returned,

that position will not come soon or easily. The Superior Court has said that a child's life

"simply cannot be put on hold in the hope that [a parent] will summon the abjlity to

handle the responsibilities of parenting." Id. at 1125.   ttlll   has already been in care

for 18 months. Even where the parent makes earnest efforts, the "court cannot and will

not subordinate indefinitely a child's need for permanence and stability to aparent's

claims of progress and hope for the future. In re Adoption of R.J.S., 901 A.2d 502 (Pa

Super 2006) Father has not for the past year showed the requisite indication that he

was willing and/or able to act to the best of his ability as a parent, even given his

incarceration. All he had to offer the court was rosy predictions and an unsupported

belief that he could adequately care for his child in the future. The Court does not

accept his unrealistic beliefs and finds that Father's parental rights fail the necessary

standards for maintenance of his parental rights under the above-cited sections of the

adoption statute.




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        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 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). In re Z.S.W., 946 A.2d 726,

 730 (Pa. Super. 2008) The answers to inquires (1) and (2) are obvious. Father was (1)

 in jail and (2) had no contact with   Cllllll As to the effect of a termination,   the

 emotional needs and welfare of the child have been properly interpreted to include

 "[i]ntangibles such as love, comfort, security, and etabillty." In re K.M., 53 A.3d 781, 791

 (Pa. Super. 2012). In In re EM., [620 A.2d 481, 485 (Pa. 1993)1, the Superior Court

 held that the determination of the child's "needs and welfare" requires consideration of

the emotional bonds between the parent and chlld, 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). Father contends in

his 1925(b} statement that termination of his parental rights is not in ctlllll's     best

interest and wlll not promote the physical, mental or emotional well-being of the child.

Father's assertion is inaccurate.

       Ctlll barely knows his Father.         He knows his aunt and uncle well, because

they have been his parents during much of his short life. It may be possible that Father

could parent him adequately after some period of time, but there is a more reaHstic and

serious risk of his repeating his history, violating his probation, and disappearing into

prison - again. Except for Father's unsupported optimism at hearing, the Court has no

evidence before it to indicate that Father is capable of controlling his actions so as to

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 avoid further criminal acts or probation violations or finish his plan. Therefore, the Court

 sees only benefit and no additlonal harm to the child in severing Father's parental

relationship and leaving ctllllllwith      people he considers to be his loving parents.

The Court believes and holds that there is no negative effect on the child of

permanently severing any remaining parental bond between          ctllll    and his father

and that it is in olllllll's   best interest to terminate Father's parental rights and allow

~           to be part of a loving and stable family.

                                          Conclusion

          For the reasons and law stated above, the Court finds that it appropriately

terminated the parental rights of c-cmmto                       his son   lllllJIIII

                                                    BY THE COURT:



DATED: November 61 2014
                                                         ~wkf
                                                    LESLIE GORBEY, JUDGE



Attest:


Copies to:
            ~c~~1~
Albert J. Meier, Esquire
David E. Alspach, Esquire
John P. Stengel, Esquire
'tlllllVvlll      Mother




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