J-S33015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.W.J., III, M.N.J., MINORS                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: J.W.J., FATHER
                                                      No. 1780 WDA 2015


                     Appeal from the Order October 15, 2015
         in the Court of Common Pleas of Allegheny County Family Court
                        at No(s): CP-02-AP-0000054-2015
                                 CP-02-AP-0000055-2015

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 15, 2016

         J.W.J. (“Father”) appeals from the orders entered on October 14,

2015, granting the petitions filed by the Allegheny County Children, Youth

and Families (“CYF”) to involuntarily terminate his parental rights to his

dependent, minor, male children, J.W.J., III, born in October of 2011, and

M.N.J., born in November of 2013 (collectively, the “Children”), pursuant to

the Adoption Act, 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b).1 We affirm.

         On March 10, 2015, CYF filed the involuntary termination petitions at

issue.     On October 14, 2015, the trial court held a hearing.      CYF first



*
    Former Justice specially assigned to the Superior Court.
1
   In the same orders entered on October 15, 2015, the trial court
involuntarily terminated the parental rights of H.M.M., the natural mother of
the Children (“Mother”). Mother was absent from the termination hearing,
but was represented by counsel, and the court proceeded with the hearing in
her absence. Trial Ct. Op., 12/18/15, at 1 n.1. Mother has not filed an
appeal of her own and is not a party to this appeal.
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presented Terry O’Hara, Ph.D.,2 as a stipulated expert in the area of

psychology.    N.T., 10/14/15, at 9.    CYF then presented the testimony of

Terese Tuminello, a CYF caseworker assigned to the case since January of

2014.     Id. at 65.    Father, who was incarcerated, was present in the

courtroom, and testified on his own behalf.          He also presented the

testimony, via telephone, of A.P., his fiancée, with whom he resides when he

is not incarcerated. Id. at 221, 232.

        Based on the testimony of Ms. Tuminello, the trial court made the

following findings of fact:

             The family had been involved with CYF prior to the
          births of J.J. and M.J. [N.T., 10/14/15, at 67.] These
          children are two of Mother’s seven children; they have four
          older siblings. Id., at 66. Mother has no children in her
          care. Id. When CYF first became involved, Mother was
          grappling with alcohol, while Father was in the Allegheny
          County Jail. Id., at 68. But at that time, in-home services
          were working with Mother, and the case was closed in
          October of 2010. Id.

              As time progressed, Mother continued to struggle with
          her sobriety.       CYF obtained Emergency Custody
          Authorizations (“ECAs”) to remove the subject children.
          J.J. was removed on January 7, 2013. Id., at 74. But he
          was temporarily returned to Mother in October 2013. In
          January 2014, an incident took place where Mother was
          arrested for DUI while she was driving with her three small
          children, including the newborn baby M.J. None of the
          children were [sic] properly restrained in car seats. CYF
          obtained ECAs for the children and J.J. was adjudicated
          dependent on January 28, 2014. M.J. was adjudicated

2
 The notes of testimony erroneously refer to Dr. Terry O’Hara as Dr. Tony
O’Hara.




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         [dependent] three months later on March 24, 2014. Id.
         Mother stipulated to her current alcohol abuse, need for
         domestic violence treatment, and her significant history
         with the agency. Id., at 75.

Trial Ct. Op. at 1-2.

      Dr. O’Hara conducted an interactional evaluation of Children with their

maternal uncle, T.L., who is their kinship foster parent, on September 22,

2015, and produced a report concerning that evaluation. Id. at 11. CYF’s

counsel questioned Dr. O’Hara about his observations and recommendations

after his interactional observation of Children with T.L. Id. at 15. Father’s

counsel objected, asserting that CYF had to present its case as to Section

2511(a) before questioning Dr. O’Hara about matters that were relevant to

Section 2511(b). Id. at 15-16. The trial court overruled the objection, and

denied any request for bifurcation of the presentation of testimony and

evidence.     Id. at 17.    The trial court judge stated that she could

appropriately address the evidence. Id. T.L.’s partner, Ms. M., was unable

to attend the evaluation. Id. at 25.

      Mother failed to appear at the evaluations scheduled to occur with Dr.

O’Hara on September 28, 2015. Id. at 11, 14. Father failed to appear for

an interactional evaluation between Father and Children scheduled for

September 30, 2015, and for an individual evaluation scheduled with Dr.

O’Hara for that same date.      Id. at 11, 14-15.   Father did not notify Dr.

O’Hara about re-scheduling the evaluations.     Id. at 14.   Dr. O’Hara has

never seen Father. Id. at 15.


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      Dr. O’Hara testified about information he received from Ms. O’Neill

from the Baer Foundation, who visited T.L. and Ms. M. interacting as a family

with Children multiple times. Id. at 18. Father’s counsel objected on the

basis of hearsay. Id. The trial court permitted Father’s counsel to conduct

voir dire examination concerning the collateral information Dr. O’Hara relied

upon in forming his opinion.   Id. at 22-23.   Dr. O’Hara explained that he

relied upon information from CYF, his own observations of Children with T.L.,

and research regarding attachment. Id. at 23.      Dr. O’Hara stated that the

failure of Father and Mother to appear at the evaluations limited him in

forming his opinions and recommendations.        Id.   Father’s counsel then

withdrew her objection. Id.

      Ms. O’Neill related to Dr. O’Hara that T.L. is “wonderful” and really

loves and cares for Children, and that T.L.’s home is the only home Children

have known. Id. at 24. Ms. O’Neill related that Ms. M. assisted in Children’s

lives, and “seems to really love and care for the kids.”     Id.   Dr. O’Hara

observed that T.L. (1) shows stability, (2) denies substance abuse, mental

health concerns, domestic violence, and criminal activity, and (3) denies that

Ms. M. has any of these issues. Id. T.L. also reportedly has stability in his

housing and employment.        Id.   T.L. and his mother, S.M., Children’s

maternal grandmother, both allegedly have a strong family, and Children are

able spend time with their sister, Z. Id.




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      Dr. O’Hara observed that T.L. exhibited several positive parenting

skills with Children in the interactional evaluation. Id. at 25. Specifically,

T.L. interacted well with Children, read to M.N.J., consistently spoke to

Children, praised them, gained their compliance, and showed affection. Id.

at 25-26. J.W.J., III, was asleep for most of the evaluation, and appeared to

be tired when awakened. Id. at 26. Dr. O’Hara observed that J.W.J., III,

responded positively to T.L.’s directions, but slowly, as he was sleepy. Id.

M.N.J. was spontaneous and frequent in his interactions with T.L., and he

exhibited autonomy and curiosity.          Id.    M.N.J. made a variety of

vocalizations, and was calm and relaxed with T.L. Id. Dr. O’Hara assessed

T.L. as showing several positive parenting skills and exhibiting stability, and

Children exhibited their attachment to him.      Id.   Dr. O’Hara believed that

J.W.J., III, was tired because of the long drive, and that the evaluation

occurred during his naptime. Id. at 27.

      Dr. O’Hara opined that the benefits of keeping Children with T.L. for

adoption outweighed any detriment from terminating the parental rights of

Father.   Id. at 27.      Dr. O’Hara made this recommendation without

conducting any evaluation of Father, as Father had not appeared for his

evaluations.   Id. at 27.     Dr. O’Hara based his recommendations on

information he received from CYF and his own research regarding Father’s

extensive criminal history, which he recounted for the court. Id. at 27-29.

Father’s counsel stipulated that Dr. O’Hara relied on the record regarding



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Father’s criminal history, and that there was no need for Dr. O’Hara to

testify as to the complete criminal history. Id. at 29.

      Dr. O’Hara was concerned that in 2008, Father had engaged in

fighting, which was a risk factor for future aggressive behaviors. Id. at 30.

Dr. O’Hara explained that Father’s failure to appear for the evaluations made

it difficult for him to make a recommendation as to whether Father is able to

appropriately care for the needs and welfare of Children.      Id. at 31.   Dr.

O’Hara was concerned that Father had been convicted of numerous assaults,

pled guilty to multiple terroristic threat charges, and had significant

convictions related to drug activity. Id. Based on Father’s criminal history,

Dr. O’Hara opined that prior to unsupervised visitation with Children, Father

would have to make significant progress with regard to anger management

and substance abuse counseling.       Id. at 32.   In preparing his report, Dr.

O’Hara considered information from CYF that Father had not visited Children

for some time. Id. Dr. O’Hara made his recommendation with a reasonable

degree of scientific certainty. Id.

      On cross-examination by Father’s counsel, Dr. O’Hara stated that he

did not know that Children would not be attending the September 30, 2015

interactional evaluation.   Id. at 32-33.   Dr. O’Hara was not provided any

information that Mother made false reports against Father that resulted in

arrests but with some charges dismissed. Id. at 37-39. Dr. O’Hara did not

know the reason why Father absconded from a halfway house in 2013. Id.



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at 39.   Dr. O’Hara stated that a person involved with drugs could be

rehabilitated, but would need to commit to participating in services over a

period of time. Id. at 40. Additionally, Dr. O’Hara would need to consider

the coping skills of the individual, his employment status, any history of

domestic violence, and any probation violations. Id. He stated that in his

experience, parenting and domestic violence programs are of limited use and

effectiveness. Id. at 42.

      In response to cross-examination by Mother’s counsel, Dr. O’Hara

testified that his recommendation was based on the collateral information,

but he had no evidence that either parent was in a position to appropriately

care for Children’s needs and welfare.      Id. at 46.   In contrast, he had

evidence that Children were exhibiting “secure components of secured

passions” with their kinship foster parents and were in a stable placement,

and that their kinship foster parents were exhibiting several positive

parenting skills. Id.

      On further examination by counsel for Children, Dr. O’Hara testified

concerning the impact of the removal from Mother on Children. Id. at 51.

On re-cross-examination by Father’s counsel, Dr. O’Hara stated that he did

not have any information that Father was informally visiting with Children or

that Father provided gifts for Children. Id. at 58-59. Dr. O’Hara clarified for

the court that he understood from CYF that there had been no visits between

Children and their biological parents, but he was unaware of any informal



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visitation between Father and Children. Id. at 59. On re-cross-examination

by Mother’s counsel, Dr. O’Hara testified that he did not have any concerns

about the development of the Children. Id. at 60. In response to further

questions by counsel for the Children, Dr. O’Hara testified that if a child has

a secure attachment with a caregiver or a parental figure, the issues the

child has with another caregiver, parent, or parental figure may be

mitigated. Id. at 62. Dr. O’Hara stated that had he known about informal

visitation between Father and Children, his opinion would not change. Id.

On additional re-direct by counsel for CYF, Dr. O’Hara testified that it would

have been beneficial for Father to attend his individual evaluation, as he

would have gathered more data upon which to base his opinion and

recommendations. Id. at 63.

      Father testified that after his release on November 1, 2012, from the

Allegheny County Jail to a halfway house, Renewal Center, he absconded

and went on the run beginning January 26, 2013, and ending on March 11,

2013. N.T. at 163-67. Father claimed that he left Renewal Center because

he believed that Children were in danger from Mother’s drunkenness and

inappropriate people in Mother’s home. Id. at 163-65. Father claimed that

while on the run, he saw Children twice at their maternal grandmother’s

home, and that he made certain they had appropriate clothing for the

season and brought them food. Id. at 165-66. Father was re-incarcerated

on March 11, 2013, until September 11, 2013.        Id.   He was released to



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Gateway Braddock to complete the requirements he failed to fulfill at

Renewal Center because he had absconded. Id. at 167-69. Father testified

that he completed a 45-day violence prevention class at Renewal Center, but

did not have the certificate of completion, as he absconded from Gateway

Braddock. Id. at 169-70.

     Regarding his contact with CYF, Father testified that he had contact

with CYF when he was in Renewal Center in 2012. Id. at 171. After Father

absconded from Renewal Center and was re-incarcerated at SCI-Pine Grove,

he next had contact with CYF in August of 2013. Id. He received a letter in

July or August of 2013 informing him that a counselor could be present, via

video, for a court conference.      Id.    Father stated that he was not

transported to court for the conference and did not participate via video. Id.

Father testified that he next heard from CYF in February, March, and April of

2015. Id. at 172.

     Father stated that he was released from prison on September 11,

2013, and then was in Gateway Braddock for approximately one month. Id.

at 171-72. Father explained that Mother contacted the police, and accused

him of punching her in the face at a bus stop. Id. at 172-73. Father then

failed to report to Gateway Braddock, was placed on the absconders list in

October of 2013, and was on the run for the entire year of 2014, until he

was arrested on January 8, 2015. Id. at 172-73. Father claimed that while

on the run during 2014, he informally visited Children at the home of their



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maternal grandmother, and would purchase clothing, food, toys, and holiday

items for them.   Id. at 173-74.   Father explained that he was taken into

custody in January of 2015 while he was doing construction work “under the

table.” Id. at 175.

     Father testified that he was unaware of his Family Service Plan (“FSP”)

goals until a conference held in March of 2015. Id. Father stated that he

received paperwork from Ms. Tuminello from March 2015 until April 2015.

Id. at 175-76.    Father had admitted into evidence, as Father’s Exhibit 1,

photographs of his home. Id. at 176.

     Father shares his home with his fiancée, A.P., and her two children.

Id. at 177.   When the trial court ordered Father to refrain from domestic

violence, Father engaged in a cognitive behavior therapy class as a

requirement of his parole from prison. Id. Father claimed that he informed

Ms. Tuminello that he had a drug and alcohol evaluation at Renewal Center,

and that she responded that she would need to verify that information with

Father’s parole officer. Id. at 178-79. Father testified that in July of 2015,

he told Ms. Tuminello that he was willing to do parenting classes, but asked

if she could set up an evening time, so that he could work. Id. at 179-80.

Father stated that he did not receive a response from Ms. Tuminello, and

that the only notices that he received from Ms. Tuminello in the mail related

to past proceedings. Id. at 180.




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      The trial court ordered Father to visit with Children twice monthly. Id.

Father’s first visit, in August of 2015, was set up for Lexington Center, which

has no security. Id. at 181. Father’s second visit was scheduled to occur at

a McDonald’s restaurant, but Father claims he was told the visit would occur

at an incorrect restaurant.    Id.   Father’s visits through September were

delayed by his incarceration on charges that he assaulted Mother on August

18, 2015.   Id. at 182-83.    Mother failed to appear in court to testify and

support the charges. Id. at 183. Father testified that Mother has brought

more than seventy charges against him, and that she never comes to court.

Id. Father stated that he did not want Children to visit him in jail because

he does not want them to see him incarcerated. Id.

      Father explained that he did not attend the interactional evaluation

with Children and Dr. O’Hara because Ms. Tuminello told him that Children

had not been transported there. Id. at 184-85. Father claimed that he sat

outside of Dr. O’Hara’s office. Id. Father denied any drug or alcohol issues.

Id. at 185. Father also testified that his FSP objectives included staying out

of trouble, but that he finds it difficult to comply when Mother makes false

reports to police about him. Id. at 185-86. Father stated that he has been

incarcerated for criminal conspiracy, selling drugs, possessing drugs with the

intent to deliver and manufacturing, and receiving stolen property for a

handgun police found in a residence when they did a drug raid. Id. at 186.

Father testified that the remainder of his incarcerations were because Mother



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made false reports about him to police and because he left the halfway

house to care for Children. Id. Father stated that he maintained contact

with CYF, as required by his FSP objectives, but it was a “hassle” because

Ms. Tuminello is always on vacation. Id. at 186-87.

     Father testified that he is employed, and works until 4:30 p.m. Id. at

187. Father stated that his last visit was on September 26, 2015, and that

he had requested additional visits. Id. at 188-89. Father stated that he had

played games with Children and brought them snacks when he visited them

at Lexington Center.    Id. at 190-91.      The second visit occurred at a

McDonald’s restaurant. Id. at 192. Father testified that Children know him

as their father, and that they love him. Id. Father explained that he will

complete his probation and parole term on April 2, 2016, and that he has

not been in any criminal trouble since his drug charges, aside from false

reports filed by Mother. Id. at 193-200. He stated that he no longer sells

drugs. Id. at 194.

     On cross-examination by counsel for CYF, and also by counsel for the

Children, Father testified that he believed that his parental rights were

already terminated prior to 2015. Id. at 203, 218. He stated that Mother

continuously harassed him by calling his telephone multiple times.   Id. at

206-07.   Father explained that he does not “believe in” attending criminal

court proceedings with a public defender, so he had to work. Id. at 201. He

stated that he did not attend permanency review hearings because he knew



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he would be arrested on a warrant if he entered the courthouse. Id. at 208.

On cross-examination by counsel for Children, Father stated that while he

was on the run in 2014, he would see Children “once or twice” a month. Id.

at 211-21.     Father blamed Ms. Tuminello and CYF for not setting up

domestic violence and parenting classes for him to attend around his work

schedule.    Id. at 215-216.   Father stated that he made efforts to contact

CYF between his release from prison on June 25, 2015, and his re-

incarceration in September of 2015.     Id. at 216-17.   Father also testified

that he gave Children bicycles and that A.P. delivered them. Id. at 222.

      On October 15, 2015, the trial court entered its orders terminating

Father’s parental rights to Children pursuant to Section 2511(a)(2), (5), (8),

and (b) of the Adoption Act.     On November 12, 2015, Father timely filed

notices of appeal along with concise statements of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On November 23, 2015,

this Court, acting sua sponte, dismissed the appeal at Docket No. 1781 WDA

2015 as duplicative.

      In his brief on appeal, Father raises four questions for this Court’s

review, as follows:

         I. Whether the Trial Court erred and/or abused its
         discretion in finding that the Office of Children, Youth and
         Families met their burden of proof and proved by clear and
         convincing evidence that the parental rights of J.W.J.
         should be terminated pursuant to 23 Pa.C.S.A. §
         2511(a)(2), (5), (8)?




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         II. Whether the Trial Court erred and/or abused its
         discretion in finding that the Office of Children, Youth and
         Families met their burden of proof and proved by clear and
         convincing evidence that the parental rights of J.W.J.
         should be terminated pursuant to 23 Pa.C.S.A. § 2511(b)?

         III. Whether the Trial Court committed fatal and reversible
         error and/or abused its discretion by allowing evidence
         over the objection of Father’s [c]ounsel by Dr. Terry
         O’Hara to testify to matters of which he had no basis and
         were based on speculation?

         IV. Whether the Trial Court committed fatal and reversible
         error and/or abused its discretion in overruling the
         objection of Father’s [c]ounsel regarding testimony from
         Dr. Terry O’Hara regarding needs and welfare of the
         children prior to an establishment that grounds to
         involuntarily terminate Father’s parental rights under 23
         Pa.C.S.A. 2511 §§ [sic] (a)(2), (5), (8) were proved by
         clear and convincing evidence?

Father’s Brief at 1.

      With regard to Section 2511(a)(2), Father contends that CYF failed to

prove by clear and convincing evidence that he did not have the capacity to

or could not remedy the conditions that led to the removal of Children.

Father’s Brief at 8, 23.   Father states that Children were removed from

Mother, who was their primary caretaker, and that he was incarcerated

during most of CYF's involvement with the family. Id. Father asserts that

his repeated incarceration was the barrier to his caring for Children. Id. at

8. He states that Mother caused many of his prior incarcerations because he

was protecting Children and that Mother had issues with mental health and

alcohol. Id. at 3, 8-9, 23. Father contends that he testified credibly that

Mother often called the police fabricating events to have him arrested, and


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that she harassed him.     Id. at 9, 23.      Thus, Father contends that he is

ready, willing, and able to care for Children.

      In reviewing an appeal from an order terminating parental rights, we

adhere 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, 26-27, 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., [614
         Pa. 275, 284,] 36 A.3d [567,] 572 [(Pa. 2011) (plurality
         opinion)]. As has been often stated, an abuse of discretion
         does not result merely because the reviewing court might
         have reached a different conclusion.         Id.; see also
         Samuel Bassett v. Kia Motors America, Inc., 613 Pa.
         371[, 455], 34 A.3d 1, 51 (Pa. 2011); Christianson v.
         Ely, [575 Pa. 647, 654-655], 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., [608 Pa. at 28-30], 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


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           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 S.P., 47 A.3d 817, 826-27 (Pa. 2012).

     The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

     Moreover, we have explained:

           [t]he standard of clear and convincing evidence is defined
           as testimony that is so “clear, direct, weighty and
           convincing as to enable the trier of fact to come to a clear
           conviction, without hesitance, of the truth of the precise
           facts in issue.”

Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

     This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of section

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

banc).     The trial court terminated Father’s parental rights under Section

2511(a)(2), (5), (8), and (b). We will focus on Section 2511(a)(2) and (b),

which provides as follows:

           § 2511. Grounds for involuntary termination

           (a) General rule.—The rights of a parent in regard to a
           child may be terminated after a petition filed on any of the
           following grounds:

                                   *     *      *

             (2) The repeated and continued incapacity, abuse,
             neglect or refusal of the parent has caused the child to


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             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. § 2511.

      This Court has explained that the focus in terminating parental rights

under Section 2511(a) is on the parent, but under Section 2511(b), the

focus is on the child. In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008)

(en banc).

      Our Supreme Court set forth our inquiry under Section 2511(a)(2) as

follows:

           [Section] 2511(a)(2) provides [the] statutory ground[] for
           termination of parental rights where it is demonstrated by
           clear and convincing evidence that “[t]he 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.” . . .


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        [The Supreme Court] has addressed incapacity sufficient
        for termination under § 2511(a)(2):

           A decision to terminate parental rights, never to be
           made lightly or without a sense of compassion for
           the parent, can seldom be more difficult than when
           termination is based upon parental incapacity. The
           legislature, however, in enacting the 1970 Adoption
           Act, concluded that a parent who is incapable of
           performing parental duties is just as parentally unfit
           as one who refuses to perform the duties.

        In re Adoption of J.J., 515 A.2d 883, 891 (Pa. 1986),
        quoting In re: William L., 383 A.2d 1228, 1239 (Pa.
        1978).

In re S.P., 47 A.3d at 827.

     This Court has stated that a parent is 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.

     In In re S.P., our Supreme Court instructed:

        incarceration is a factor, and indeed can be a
        determinative factor, in a court’s conclusion that grounds
        for termination exist under § 2511(a)(2) where the
        repeated and continued incapacity of a parent due to
        incarceration has caused the child to be without essential
        parental care, control or subsistence and [] the causes of
        the incapacity cannot or will not be remedied.

In re S.P., 47 A.3d at 828.




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J-S33015-16

      After re-visiting its decision in In re R.I.S., 36 A.3d 567 (Pa. 2011),

regarding incarcerated parents, the Supreme Court stated:

         we now definitively hold that incarceration, while not a
         litmus test for termination, can be determinative of the
         question of whether a parent is incapable of providing
         “essential parental care, control or subsistence” and the
         length of the remaining confinement can be considered as
         highly relevant to whether “the conditions and causes of
         the incapacity, abuse, neglect or refusal cannot or will not
         be remedied by the parent,” sufficient to provide grounds
         for termination pursuant to 23 [Pa.C.S.] § 2511(a)(2).
         [See In re E.A.P., 944 A.2d 79, 85 (Pa. Super. 2008)]
         (holding termination under § 2511(a)(2) supported by
         mother’s repeated incarcerations and failure to be present
         for child, which caused child to be without essential care
         and subsistence for most of her life and which cannot be
         remedied despite mother’s compliance with various prison
         programs). If a court finds grounds for termination under
         subsection (a)(2), a court must determine whether
         termination is in the best interests of the child, considering
         the developmental, physical, and emotional needs and
         welfare of the child pursuant to § 2511(b). In this regard,
         trial courts must carefully review the individual
         circumstances for every child to determine, inter alia, how
         a parent’s incarceration will factor into an assessment of
         the child’s best interest.

In re S.P., 47 A.3d at 830-31 (some citations omitted).

      The trial court made the following findings of fact regarding Father’s

ability to care for Children:

            . . . Father has been unable to care for the [C]hildren,
         due to his various incarcerations. His criminal history is
         quite extensive. In 2007 he pled guilty to harassment and
         disorderly conduct. In 2008 he pled guilty to a felony
         criminal conspiracy, and manufacture, delivery, possession
         with intent to manufacture or delivery [sic], possession
         with intent to manufacture or deliver. In 2011, Father was
         found guilty of terroristic threats and simple assault and



                                     - 19 -
J-S33015-16

         resisting arrest.    See CYF Exhibit D.     See also [N.T.] at
         28-29.

              He was incarcerated when J.J. was initially adjudicated
         dependent. Father was incarcerated between March and
         May 2013 and then again from July to August 2013. Id.,
         at 107. During the whole of 2014, Father was either
         incarcerated or had absconded, whereabouts unknown,
         from a half-way house.         Id., at 105; 173.    He was
         incarcerated again from January to June 2015, and then as
         recently as September 2015, a month before the TPR
         hearing, at which he was present. Id. at 107. There was
         little, if any[,] contact, [sic] between the [C]hildren and
         their [f]ather. In fact, Father allegedly insisted that the
         [C]hildren not visit him while he was incarcerated. Id. at
         149.

            Family Service Plans (“FSPs’) are created by CYF for
         parents in order to facilitate the reunification between
         parent and child. CYF utilizes goals to measure progress
         with the FSP. See CYF Exhibit E. Although CYF created
         FSP goals for Father in 2010 and in 2013, Father argues
         that he was not made aware of these goals until he met
         with CYF upon his release in July of 2015, before he was
         incarcerated again in September 2015. Id., at 122.

Trial Ct. Op. at 2-3.

      The   trial   court   addressed    Father’s   argument   regarding   Section

2511(a)(2) as follows.

            To begin with, the [C]hildren – nearly four and two
         years old at the time of the TPR hearing – have never been
         in Father’s care. Father was largely incarcerated or on
         [the] run from probation and CYF during the vast majority
         of this case.     He did not attend permanency review
         hearings because he knew he would be picked up on a
         warrant if he entered the court house. [N.T., 10/14/15,]
         at 208.      Father claims that he informally visited the
         [C]hildren at their maternal grandmother’s home; and
         when he did, he parented the [C]hildren by clothing and
         feeding them. See [N.T.], at 166-167. This testimony is
         not particularly credible, nor [sic] even persuasive. He


                                        - 20 -
J-S33015-16

       only visited them twice between     January and March 2013.
       Id. At most, even if this [c]ourt   was to believe Father, he
       only visited the [C]hildren “once   or twice a month” during
       all of 2014.     None of these      informal visits are [sic]
       verifiable.

          Father claims that his criminal history is behind him, but
       the facts show anything but. He testified that his days of
       selling drugs are over. Id., at 194. He argues that any
       violence he perpetrated against Mother was falsely
       reported, merely Mother’s ploy of getting him in trouble.
       After an incident where he allegedly punched Mother at a
       bus stop, Father did not turn himself in upon learning that
       police would be going to his place of work to arrest him.
       Father testified that he “doesn’t believe in” going to court
       proceedings for a criminal matter with a public defender.
       Id., at 201. Instead, he went on [the] run from the police
       so he could work to retain funds to hire a private counsel.
       Id.

           His primary argument is that CYF did not adequately
       help him reunify with the [C]hildren. He said that he did
       not have contact with CYF until August 2013. Id., at 171.
       At trial, Father seemingly argued that CYF could not prove
       its burden, because the agency could not locate him, and
       because they could not locate him while he was on [the]
       run from his incarceration, they could not give him his his
       [sic] Family Service Plan [(“FSP”)]. And because they
       could not give him an FSP, he cannot be held responsible
       for its non-compliance. But this logic would require the
       flawed belief that Father need not be held accountable for
       caring for his children if he cannot be found. See [i]d., at
       111-114. In actuality, Father had already thought his
       rights were terminated. Id., at 203; [sic] 218. Similarly,
       because Father chose not to attend Dr. O’Hara’s
       psychological evaluation, the expert doctor must be
       prevented from “speculating” about Father’s parenting
       skills.4

          Insofar as the FSP goals are concerned, Father claims
       that evidence of his completion of domestic violence
       programs was destroyed when he went on [the] run. Id.,
       at 170. He also claims that he did not comply with the FSP
       goals because he first needed a job. Id., at 179. He also


                                  - 21 -
J-S33015-16

         blamed CYF for not communicating with him. See, e.g.,
         [N.T., 10/14/15], at 215.        He stated that the CYF
         caseworker was always on vacation. Id., at 187. He said
         that calling CYF’s office was a “hassle.” Id. The [trial
         court] notes that CYF served Father with the TPR petitions
         on March 20, 2015. At least as § 2511(a)(8) is concerned,
         [the trial court] cannot 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 petitions.” 23 Pa.C.S.A. § 2511(b). Any and all effort
         Father made at all in this case occurred during the short
         time between his most recent incarcerations: June to
         September 2015. See [N.T., 10/14/15], at 216.

            The record is clear that the conditions that led to the
         removal of the [C]hildren from their [f]ather’s care have
         remained present and unaddressed.         Meanwhile, the
         [C]hildren have been without parental care during their
         entire lives. For the aforementioned reasons, CYF met its
         burden and established grounds for termination under §
         2511(a)(2); [sic] (5); [sic] and (8).
         _______________________________________________
         4
           Father claims that he actually showed up to Dr. O’Hara’s
         office, but left because he did not think his kids were
         coming. Id., at 184-185.

Trial Ct. Op. at 5-7 (footnote in original).

      We find that the competent evidence in the record supports the trial

court’s credibility and weight determinations regarding Section 2511(a)(2).

Id.   Thus, we conclude that the trial court did not abuse its discretion in

terminating Father’s parental rights under Section 2511(a)(2). In re S.P.,

47 A.3d at 826-27.

      Next, we review the termination of Father’s parental rights under

Section 2511(b). Our Supreme Court recently stated as follows:




                                      - 22 -
J-S33015-16

            [I]f the grounds for termination under subsection (a)
         are met, a court “shall give primary consideration to the
         developmental, physical and emotional needs and welfare
         of the child.” 23 Pa.C.S. § 2511(b). The emotional needs
         and welfare of the child have been properly interpreted to
         include “[i]ntangibles such as love, comfort, security, and
         stability.” In re K.M., 53 A.3d 781, 791 (Pa. Super.
         2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)],
         this Court held that the determination of the child’s “needs
         and welfare” requires consideration of the emotional bonds
         between the parent and child. 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 claims that he visited with Children, purchased clothes and

bicycles for them, and kept current on matters concerning them.         Father

weaves his third and fourth issues into his argument concerning Section

2511(b). Father contends that the trial court improperly allowed Dr. O’Hara

to testify out of order, over his counsel’s objection. Finally, Father argues

that the trial court permitted Dr. O’Hara to speculate in his opinion as to

Father, since Dr. O’Hara did not perform a psychological evaluation of Father

and observe Father in an interactional evaluation with the Children.

      The trial court addressed Father’s argument regarding Section 2511(b)

as follows:

            Father argues that [the trial court] erred when it found
         that termination of his rights would meet the needs and
         welfare of the [C]hildren. This contention is noted in
         paragraph two of his concise statement. But it is prudent
         to first discuss Father’s [fourth issue].

              a. Order of testimony


                                      - 23 -
J-S33015-16



          Father alleges [the trial court] erred when it heard Dr.
       O’Hara’s testimony regarding the needs and welfare
       element prior to first hearing testimony regarding whether
       the grounds have been established. At the trial, [the trial
       court] took Dr. O’Hara’s testimony out of order for
       purposes of judicial economy. He was only available in the
       morning, at the beginning of the trial. It is common for
       [the trial court] to accommodate both lawyers’ schedules
       and their witnesses[’], upon good cause shown. Counsel
       for Father objected to this manner of procedure. [N.T.,
       10/14/15, at 15-18]. Opposing counsel noted that “needs
       and welfare” consideration is due under § 2511[(a)](5)
       and (8). Id. The [trial court] is keenly aware of the TPR’s
       two-step legal analysis and is able to segregate its
       responsibilities accordingly.       Father’s contention is
       meritless.

          b. § 2511(b) and speculation

          Returning focus now to the substance, [the trial court]
       found that terminating the [f]ather’s parental rights served
       the needs and welfare of the [Children]. The [C]hildren
       reside in the home of their pre-adoptive foster parents[,]
       T.L. and his wife[,] L.M. See [N.T., 10/14/15], at 102.
       T.L. is the [C]hildren’s biological [maternal] uncle. Dr.
       O’Hara conducted an [interactional] between the
       [C]hildren and their foster parents. See CYF Exhibit A,
       Psychological Evaluation Report, dated September 30,
       2015. The foster father demonstrated positive parenting
       skills. Id. He stated that he loves the [C]hildren as his
       own.    Id.   He also reported to Dr. O’Hara that the
       [C]hildren are happy, and that they have no concerning
       problems, through [sic] they were cranky during the
       evaluation.   Id.    The foster parents have two other
       children.   Id.   Dr. O’Hara ultimately opined that the
       benefits of the adoption, including a sense of safety,
       security, and stability, outweigh any possible detriment
       associated with the termination of Father’s rights. Id. Dr.
       O’Hara’s recommendation is made with a reasonable
       degree of psychological certainty. Id.

          Father argues that Dr. O’Hara’s testimony was pure
       speculation because he never met with Father.    This


                                  - 24 -
J-S33015-16

         contention is noted in Father’s [third issue]. Recall that
         Father allegedly went to Dr. O’Hara’s office on the day of
         the evaluation, but chose to leave after allegedly learning
         that the [C]hildren would not be there. Dr. O’Hara stated
         that he was able to form his expert opinion based on
         collateral information. This includes, among other things,
         Father’s criminal history. It can be argued that Father
         conceded Dr. O’Hara’s use of his criminal history as a
         criterion when Father stipulated to said criminal record
         during Dr. O’Hara’s testimony. See [N.T., 10/14/15], at
         29. Dr. O’Hara also based his opinion on the fact that
         Father was not visiting the [C]hildren, as reported to him
         by CYF. He was not aware that Father was having alleged
         informal visits. Id., at 58. Critically, however, Dr. O’Hara
         testified that his opinion would not change even if he knew
         Father had informal visits. Id., at 62.

            Father has never provided for the [C]hildren any of
         their developmental, emotional, or physical needs. Dr.
         O’Hara’s [sic] testified that he did not have sufficient
         evidence that Father is in any position to appropriately
         care for the [C]hildren’s needs and welfare. Id. at 46. He
         further testified that he does see evidence that the
         [C]hildren are exhibiting secure components of secured
         passions with their kinship foster parents and they are in
         placements that are stable. Id. The [trial court] agrees.
         Termination would clearly meet the [C]hildren’s needs and
         welfare.

            D. CONCLUSION

            After a careful review of all the evidence set forth
         above, [the trial court] concluded that CYF had carried the
         burden of proving by clear and convincing evidence that
         Father’s rights should be terminated and that the child’s
         best interests would be served thereby.         CYF firmly
         established the grounds for termination and that
         termination best serves the [C]hildren’s needs and welfare.
         Furthermore, the [trial court] did not error [sic] by
         proceeding with Dr. O’Hara’s testimony, nor was this
         testimony speculative in nature. . . .

Trial Ct. Op. at 7-10.



                                    - 25 -
J-S33015-16

      We have stated that it is appropriate to consider a child’s bond with his

or her foster parents. See In re T.S.M., 71 A.3d at 268. This Court will not

prolong instability for children when it is clear that their biological parents

are unable to provide for their basic needs in the near future. See id. at

270. As we stated in In re Z.P., 994 A.2d 1108 (Pa. Super. 2010), 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.” Id. at 1125. Rather,

“a parent’s basic constitutional right to the custody and rearing of his or her

child is converted, upon the failure to fulfill his or her parental duties, to the

child’s right to have proper parenting and fulfillment of his or her potential in

a permanent, healthy, safe environment.”       In re B., N.M., 856 A.2d 847,

856 (Pa. Super. 2004).

      We find that the competent evidence in the record supports the trial

court’s credibility and weight determinations.      As the trial court’s 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, we affirm the trial

court’s decision with regard to subsection (b). In re S.P., 47 A.3d at 826-

27. Further, we find that for the reasons expressed by the trial court, the

court did not err in allowing Dr. O’Hara to testify out of order and by

accepting his testimony without (1) an interactional evaluation between

Father and the Children and (2) an individual evaluation of Father.




                                     - 26 -
J-S33015-16

Accordingly, we affirm the trial court’s orders involuntarily terminating

Father’s parental rights.

      Orders affirmed.

      President Judge Gantman joins the memorandum

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/15/2016




                                   - 27 -
