J-S18031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE MATTER OF: M.S., A MINOR       :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
    APPEAL OF: R.M., FATHER               :
                                          :
                                          :
                                          :
                                          :
                                          :   No. 2066 EDA 2016

                  Appeal from the Order Entered May 31, 2016
              In the Court of Common Pleas of Philadelphia County
             Family Court at No(s): AP# CP-51-AP-0000420-2016,
            DP# CP-51-DP-0002822-2014, FID# 51-FN-002570-2014


BEFORE:      PANELLA, SOLANO, and FITZGERALD*, JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 17, 2017

        R.M. (“Father”) appeals from the order that involuntarily terminated

his parental rights to his daughter, M.S. (“Child”), born in November of

2014.1      Father claims that the trial court erred in finding clear and


*
    Former Justice specially assigned to the Superior Court.
1
  By separate orders dated May 31, 2016, the trial court involuntarily
terminated the parental rights of K.K.S. a/k/a K.S. (“Mother”) and any
unknown father. Neither Mother nor any unknown father filed a notice of
appeal from the respective orders. We note that although there was some
dispute regarding whether Father submitted to a paternity test, there was no
indication in a result of such testing was received.

      The trial court also issued a goal change order dated May 31, 2016.
Because Father has not challenged the goal change, we will not address it in
this appeal. See Krebs v. United Ref. Co. of Pa., 893 A.2d 776, 797 (Pa.
Super. 2006) (“We will not ordinarily consider any issue if it has not been set
forth in or suggested by an appellate brief’s statement of questions
involved. . . .” (citations omitted)).
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convincing evidence for termination under 23 Pa.C.S. § 2511(a)(1), (2), and

(b). We affirm.

         Shortly after Child’s birth in November of 2014, the Philadelphia

Department of Human Services (“DHS”) received a report that Child, along

with Mother, tested positive for opiates. Mother was discharged shortly after

Child’s birth. However, Child remained hospitalized. DHS visited Mother at

her home, and she admitted using drugs. DHS observed that Mother did not

have the necessities to care for Child.

         On December 4, 2014, upon Child’s discharge from the hospital, the

trial court placed Child in the protective custody of DHS. The dependency

petition initially listed Child’s father as M.F., with whom Mother had another

child.     The court adjudicated Child dependent on December 11, 2014.

Subsequently, M.F. was determined not to be Child’s biological father, and

Father became known to DHS.        The Community Umbrella Agency (“CUA”)

established a single case plan (“SCP”) objective for Father to make his

whereabouts known to CUA.

         Father appeared at the first permanency review hearing on March 12,

2015, and counsel was appointed.      The court directed a paternity test for

Father and supervised visits.     Father did not appear at the next three

permanency review hearings conducted on June 11, 2015,2 August 27,


2
 The trial court again ordered Father to appear for a paternity test on June
11, 2015.



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2015, and January 14, 2016, although Father’s counsel was present at these

hearings.   According to Father, he was incarcerated from May or June of

2015 until April of 2016.3

      On May 12, 2016, one month after Father’s release from custody, DHS

filed a petition for the involuntary termination of Father’s parental rights

pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (b). A hearing was held on

May 31, 2016.

      With respect to Father, Sharon Palmer, a CUA supervisor at Catholic

Community Services, testified that Father (1) never met Child, (2) did not

visit with Child, (3) did not respond to letters from her agency, (4) did not

call the agency, and (5) could not be located when CUA workers went to the

address he provided the agency. N.T., 5/31/16, at 24, 29-32. Additionally,

Ms. Palmer testified that her file did not contain documentation that Father

submitted to a paternity test. Id. at 24. On cross-examination by Father’s

counsel, Ms. Palmer conceded that Father met his single goal of making his

whereabouts known by appearing at the March 12, 2015 permanency review

hearing.    Ms. Palmer further stated that she did not attempt to contact

Father personally until May 23, 2016, eight days before the hearing, and




3
  The record reveals that Father entered a guilty plea on May 26, 2015, for
drug crimes. DHS Ex. 8, at 4. In addition, the record reveals that Father
has an extensive criminal history involving robbery and theft. DHS Ex. 8, at
1-10.



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that she did not personally conduct clearances or a home assessment for

Father. Id. at 37-39, 42.

     Michelle Jackson, a caseworker at Catholic Community Services,

testified that Child and foster parent had a “very close bond.”   Id. at 47.

The remainder of Ms. Jackson’s testimony related to Mother, not Father.

     Father testified on his own behalf and acknowledged that he appeared

at the March 12, 2015 permanency review hearing. Id. at 77-78. According

to Father, CUA did not give him a visitation schedule or other objectives

except making himself known to DHS. Id. at 78. Father did not personally

contact CUA to inform the agency of his incarceration. Id. at 79. Instead,

Father contacted his family members, including his female cousin, T.F., to

ask whether they “heard anything . . . .” Id. at 79. Father asserted that he

received no response to his inquiries. Id. Additionally, Father asserted that

he took parenting classes while in prison and entered into evidence a letter

from one of his classes. Id. at 80.

     Father also testified that he met Child “about three times” during

Mother’s supervised visitations. Id. at 78-79, 83. He requested visitation

with Child, and concluded that he was in a position to take Child, but CUA

had not assessed his home.       Id. at 83.   On cross-examination, Father

conceded that he did not request additional visitation “[b]ecause the

paternal results didn’t come back and [he] wasn’t sure . . . .” Id. at 90. He

further acknowledged that he had a lawyer for the dependency and



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termination proceeding, as well as a social worker in prison, but did not

contact CUA for additional visitation though them. Id. at 89-90.

      T.F., Father’s cousin, also testified at the hearing. T.F. asserted that

she attempted to help Father complete a paternity test and requested

kinship care for Child. Id. at 94-95. T.F. testified that she was in contact

with “Mr. Walt,” whom she believed was with the foster agency or DHS, a

“few times a month,” and informed Mr. Walt of Father’s incarceration on

three occasions. Id. at 95-99.

      By order dated May 31, 2016, the trial court involuntarily terminated

Father’s parental rights. 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) and (b).    The trial court filed its Rule 1925(a) opinion on

August 17, 2016.

      In its opinion, the trial court stated that it found the testimony of

Father and his cousin, T.F., incredible.   Trial Ct. Op., 8/17/16, at 5.   The

court instead found credible the testimony of Ms. Palmer, the CUA

supervisor. Id. The court noted:

      [The CUA] supervisor testified that Father had one [ ] SCP
      objective. The SCP objective for [F]ather was to make his
      whereabouts known to CUA. On March 12, 2015, [F]ather
      appeared at a Permanency Hearing and provided the [c]ourt with
      an address. The CUA supervisor testified that two CUA workers
      visited the address provided. Furthermore, letters were sent to
      the address which contained CUA’s contact information. Lastly,
      attempts were made to contact [F]ather by telephone. Father
      never responded to CUA’s attempts to contact him.



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      On March 12, 2015 and June 11, 2015, [F]ather was ordered by
      the court to submit to a paternity test and to visit with the child.
      Father did not submit to a paternity test. Furthermore, [F]ather
      never did visit [ ] with [Child]. The CUA supervisor testified that
      they were unable to schedule visits with [F]ather because he
      never responded to CUA’s attempts to contact him.

Id. at 3 (citations to record omitted).      Thus, the court concluded Father

failed to perform his parental duties. Id.

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

         1. Whether the [t]rial [c]ourt erred by terminating the
         parental rights of [Father], under 23 Pa.C.S.A. § 2511
         subsections (a)(1) and (a)(2)?

         2. Whether the [t]rial [c]ourt erred by finding, under 23
         Pa.C.S.A. § 2511(b), that termination of [Father’s]
         parental rights best serves the Child’s developmental,
         physical and emotional needs and welfare?

Father’s Brief at 4.

      Father first argues that the evidence was insufficient to terminate his

parental rights pursuant to Section 2511(a). The crux of Father’s argument

is that DHS did not make reasonable efforts to reunify him with Child.

Father supports this contention by insisting that he was fully compliant with

his Single Case Plan by making his whereabouts known. Id. at 9. Father

notes CUA did not evaluate his home, perform background clearances on

him, or arrange visitation between him and Child. Id. at 9-10. He avers

that Sharon Palmer, the CUA supervisor, failed to contact him, and only

called him once, eight days before the termination hearing. Id. at 9. Father

also notes that although Ms. Palmer testified that she was not aware of his



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incarceration,    T.F.   testified   that   she   informed   Mr.   Walt   of   Father’s

incarceration.    Id. at 9-10. Further, Father asserts that he has overcome

any barriers that would prevent reunification, completed a parenting class

while incarcerated, and is “ready to have the Child placed in his care.” Id.

No relief is due.

      We review Father’s appeal according to the following standard:

               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. §§ 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


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           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).

      We need only agree with the trial court as to any one subsection of

Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)

(en banc). In this case, we review the trial court’s termination of Father’s

parental rights pursuant to Section 2511(a)(1), which provides:

      (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.

23 Pa.C.S. § 2511(a)(1).

      Section 2511(a)(1) requires that “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) (citation

omitted).

              There is no simple or easy definition of parental
              duties. Parental duty is best understood in relation


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            to the needs of a child.        A child needs love,
            protection, guidance, and support. These needs,
            physical and emotional, cannot be met by a merely
            passive interest in the development of the child.
            Thus, this court has held that the parental obligation
            is a positive duty which requires affirmative
            performance.

            This affirmative duty encompasses more than a
            financial obligation; it requires continuing interest in
            the child and a genuine effort to maintain
            communication and association with the child.

            Because a child needs more than a benefactor,
            parental duty requires that a parent exert himself to
            take and maintain a place of importance in the
            child’s life.

         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 or her 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 . . . her
         physical and emotional needs.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).

      When the evidence establishes a failure to perform parental duties, the

trial court must further consider:

      (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).




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In re Z.S.W., 946 A.2d at 730 (citation omitted).           With respect to

incarceration, our Supreme Court has emphasized:

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

In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012) (citation omitted)

(emphasis added).

     This Court has also rejected the suggestion that a parent is “only

required to attempt the level of parenting consistent with his and the

agency’s knowledge of parentage.”          In re Z.S.W., 946 A.2d at 731

(quotation marks omitted).    We reasoned: “To adopt [such a] rationale

would relieve all fathers of their parental duties until their parentage was

confirmed by a paternity test.” Id.

     Instantly, the trial court made credibility determinations that despite

appearing at the first permanency review hearing, Father failed to maintain

contact with Child or CUA.      See Trial Ct. Op. at 3, 5.       The court’s

determination was supported in the record by Ms. Palmer’s testimony that

Father did not contact CUA, did not respond to CUA, and could not be

located by two CUA employees that went to his home.         Additionally, Ms.




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Palmer testified that Father did not inform CUA that he was incarcerated

between May of 2015 and April of 2016.

      Although Father stated he instructed T.F. to tell CUA that he was in

prison, and T.F. testified that she informed “Mr. Walt” of Father’s

incarceration, the trial court was within its province as the finder of fact to

reject that testimony. See In re T.S.M., 71 A.3d at 267. Similarly, the trial

court was entitled to reject Father’s testimony that he visited with Child

three times on his own accord during Mother’s supervised visits.         In any

event, it is significant that when asked why he did not request additional

visitations, Father asserted that he was awaiting the results of the paternity

tests. See In re Z.S.W., 946 A.2d at 731.

      We also note that Father was incarcerated for approximately the first

five of the six months preceding the filing of the petition to terminate his

parental rights. Although this incarceration is not alone dispositive, Father

conceded that he had resources available to him while in prison, namely, his

court-appointed attorney in this matter, as well as a prison social worker.

Father admitted he did not take efforts to reach out to CUA through these

resources.

      In light of the foregoing, we discern no basis to disturb the trial court’s

findings and credibility determinations that Father undertook no efforts to

cultivate a parent-child relationship or demonstrate a willingness or capacity

to undertake a parental role. We further find ample support for the court’s



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legal conclusion that Father’s conduct in the six months immediately

preceding the filing of the petition to terminate his parental rights failed to

perform his parental duties.   Moreover, we agree with the court’s analysis

that Father’s lack of diligence in performing his parental duties caused CUA’s

inability to provide services for him. Thus, we conclude the court properly

found the grounds for termination under Section 2511(a)(1).

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

his parental rights pursuant to Section 2511(b). Specifically, Father asserts

that “[a]ny lack of a bond that the child has with Father is due to the agency

not following court orders to set[]up a visitation schedule. Father believes

that with consistent visitation, Child will be ready to reunify with him.”

Father’s Brief at 13-14. No relief is due.

      Section 2511(b) states, in relevant part:

         (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. . . .

23 Pa.C.S. § 2511(b).

      This Court has stated that, “[i]ntangibles such as love, comfort,

security, and stability are involved in the inquiry into the needs and welfare

of the child.   The court must also discern the nature and status of the

parent-child bond, with utmost attention to the effect on the child of


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permanently severing that bond.” In re C.M.S., 884 A.2d 1284, 1287 (Pa.

Super. 2005) (citations omitted).    However, “[i]n cases where there is no

evidence of any bond between the parent and child, it is reasonable to infer

that no bond exists. The extent of any bond analysis, therefore, necessarily

depends on the circumstances of the particular case.”      In re K.Z.S., 946

A.2d 753, 762-63 (Pa. Super. 2008) (citation omitted).

      Moreover,

         in 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 A.S., 11 A.3d 473, 483 (Pa. Super. 2010) (citation omitted). Further,

our Supreme Court has 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”

and directs “courts . . . keep the ticking clock of childhood ever in mind.” In

re T.S.M., 71 A.3d at 268-69 (citation omitted).

      Instantly, there is no evidence of a parent-child bond between Father

and Child. Child was born in November 2014, was placed in the care of DHS

in December 2014. Father attended one hearing regarding Child. However,

shortly thereafter, Father was incarcerated, and remained in prison until one

month before the filing of the petition to terminate his parental right in May


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2016. The CUA supervisor, Ms. Palmer, testified that Child has never met

Father.   N.T. at 32.   Moreover, even accepting Father’s testimony that he

visited with Child three or four times during Mother’s scheduled visitations,

we discern no suggestion from the record that a parental bond was formed

or existed.   Therefore, it was reasonable for the trial court to infer that a

bond did not exist. See In re K.Z.S., 946 A.2d at 762-63. Moreover, as

discussed above, we discern no merit to Father’s assertion that the absence

of a bond is the result of CUA not scheduling supervised visits, rather than

Father’s failure to perform his parental duties.

      The evidence also reveals that a parent-child bond exists between the

foster parent and Child. N.T. at 47. Child has resided in the same foster

home since her placement shortly after birth, and it is a pre-adoptive

resource. Id. at 9. As such, we discern no abuse of discretion by the trial

court in concluding that terminating Father’s parental rights serves the

developmental, physical and emotional needs and welfare of Child pursuant

to Section 2511(b).

      Accordingly, because we find no abuse of discretion in the trial court’s

credibility findings and legal conclusion regarding Section 2511(a)(1) and

(b), we must affirm. See In re T.S.M., 71 A.3d at 267.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/17/2017




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