J-S89033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.D.M., A MINOR               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: M.N., FATHER
                                                       No. 107 EDA 2016


                  Appeal from the Decree December 11, 2015
       in the Court of Common Pleas of Philadelphia County Family Court
                                   at No(s):
                           CP-51-AP-0000183-2015
                           CP-51-DP-0000110-2013

IN THE INTEREST OF: L.A.N., A MINOR               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: M.N., FATHER
                                                       No. 149 EDA 2016


                  Appeal from the Decree December 11, 2015
       in the Court of Common Pleas of Philadelphia County Family Court
                                   at No(s):
                           CP-51-AP-0000182-2015
                           CP-51-DP-0001492-2012

BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED January 13, 2017

        M.N. (“Father”) appeals from the decrees entered in the Philadelphia

County Court of Common Pleas, which involuntarily terminated his parental

rights to minor children, D.D.M. and L.A.N. (“Children”), pursuant to 23

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

simultaneously held that the adoption of the Children could proceed in

accordance with the goal change.       Father’s counsel has filed a petition to

*
    Former Justice specially assigned to the Superior Court.
J-S89033-16


withdraw and an Anders brief.1       We affirm and grant counsel’s motion to

withdraw.

        We adopt the facts and procedural history set forth by the trial court’s

opinion. See Trial Ct. Op., 6/30/16, at 1-5.2

        On appeal, Father’s counsel filed an Anders brief and a motion to

withdraw with this Court.       As a prefatory matter, we examine whether

counsel complied with the requirements of Anders, as clarified by the

Pennsylvania Supreme Court in Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009).

           This Court must first pass upon counsel’s petition to
           withdraw before reviewing the merits of the underlying
           issues presented by [the appellant].

              Prior to withdrawing as counsel on a direct appeal under
           Anders, counsel must file a brief that meets the
           requirements established by our Supreme Court in
           Santiago. The brief must:

              (1) provide a summary of the procedural history and
              facts, with citations to the record;


1
    Anders v. California, 87 S. Ct. 1396 (1967).
2
   We note that the trial court’s opinion states that the Philadelphia
Department of Human Services (“DHS”) filed the petitions to involuntarily
terminate Father’s parental rights to the Children on November 24, 2015.
See Trial Ct. Op. at 1. A review of the record reveals that DHS filed a
petition to terminate Father’s parental rights to L.A.N. on March 27, 2015.
However, that same day, DHS also filed a petition to terminate the parental
rights of D.D.M.’s unknown father. Thereafter, a paternity test determined
M.N. to be the father of D.D.M., and DHS filed an amended petition to
terminate Father’s parental rights to D.D.M. on November 24, 2015.




                                      -2-
J-S89033-16


           (2) refer to anything in the record that counsel believes
           arguably supports the appeal;

           (3) set forth counsel’s conclusion that the appeal is
           frivolous; and

           (4) state counsel’s reasons for concluding that the
           appeal is frivolous.     Counsel should articulate the
           relevant facts of record, controlling case law, and/or
           statutes on point that have led to the conclusion that
           the appeal is frivolous.

        Santiago, 978 A.2d at 361. Counsel also must provide a
        copy of the Anders brief to his client. Attending the brief
        must be a letter that advises the client of his right to: “(1)
        retain new counsel to pursue the appeal; (2) proceed pro
        se on appeal; or (3) raise any points that the appellant
        deems worthy of the court[’]s attention in addition to the
        points raised by counsel in the Anders brief.”

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)

(some citations omitted). If counsel complies with these requirements, “we

will make a full examination of the proceedings in the lower court and render

an independent judgment [as to] whether the appeal is in fact ‘frivolous.’”

Id. at 882 n.7 (citation omitted).     Moreover, “this Court extended the

Anders principles to appeals involving the termination of parental rights.”

In Int. of J.J.L., ___ A.3d ___, ___, 2016 WL 6776288 at *3 (Pa. Super.

Nov. 15, 2016) (citing In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992)).

     Instantly, counsel provided a factual and procedural summary of the

case with citations to the record. Anders Brief at 7-13. Counsel explained

the relevant law, discussed why Father’s issues are meritless, and

determined the appeal is frivolous. Id. at 18-26. Counsel provided Father



                                    -3-
J-S89033-16


with a copy of the Anders brief and a letter advising Father of his right to

retain new counsel or proceed pro se to raise additional issues in this Court.

See Orellana, 86 A.3d at 879-80; Counsel’s Mot. to Withdraw, 9/21/16. In

light of the foregoing, we hold counsel has complied with the requirements

of Santiago. See Orellana, 86 A.3d at 879-80. Father has not filed a pro

se or counseled brief. We now examine the record to determine whether the

appeal is wholly frivolous. See id. at 882 n.7.

        The Anders brief raises the following issues for our review:

           Whether under the Juvenile Act, 42 Pa.C.S.A. Section
           6351, and 55 Pa. Code Section 3130.74, in accordance
           with the provisions of the Federal Adoption and Safe
           Families Act, 42 U.S.C. Section 671 et seq., reasonable
           efforts were made to reunite . . . Father with his Children
           and whether the goal changes to adoption was the
           disposition best suited to the safety, protection and
           physical, mental and moral welfare of the Children.

           Whether it was proven by clear and convincing evidence
           that Father’s parental rights should be terminated under
           Sections 2511(a)(1), (2)[,](5) and (8) [and Section]
           2511(b).

           Whether there is anything in the record that might
           arguably support the appeal that obviates a conclusion
           that the appeal is frivolous.

Anders Brief at 6 (capitalization removed).3

        Appellate review in termination of parental rights cases implicates the

following principles:


3
    We have reordered Father’s issues for ease of disposition.




                                      -4-
J-S89033-16


        In cases involving termination of parental rights: “our
        standard of review is limited to determining whether the
        order of the trial court is supported by competent
        evidence, and whether the trial court gave adequate
        consideration to the effect of such a decree on the welfare
        of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa. Super. 2010) (citation omitted).

           Absent an abuse of discretion, an error of law, or
           insufficient evidentiary support for the trial court’s
           decision, the decree must stand. . . . We must
           employ a broad, comprehensive review of the record
           in order to determine whether the trial court’s
           decision is supported by competent evidence.

        In re B.L.W., 843 A.2d 380, 383 (Pa. Super.) (en banc),
        appeal denied, 863 A.2d 1141 (Pa. 2004) (internal
        citations omitted).

           Furthermore, we note that the trial court, as the
           finder of fact, is the sole determiner of the credibility
           of witnesses and all conflicts in testimony are to be
           resolved by [the] finder of fact. The burden of proof
           is on the party seeking termination to establish by
           clear and convincing evidence the existence of
           grounds for doing so.

        In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa. Super.
        2002) (internal citations and quotation marks omitted).
        The standard of clear and convincing evidence means
        testimony that is so clear, direct, weighty, and convincing
        as to enable the trier of fact to come to a clear conviction,
        without hesitation, of the truth of the precise facts in issue.
        In re J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002).
        We may uphold a termination decision if any proper basis
        exists for the result reached. In re C.S., 761 A.2d 1197,
        1201 (Pa. Super. 2000) (en banc). If the court’s findings
        are supported by competent evidence, we must affirm the
        court’s decision, even if the record could support an
        opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]
        (Pa. Super. 2004).




                                     -5-
J-S89033-16


In re Z.P., 994 A.2d at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa. Super. 2007)).

      In the first issue identified by counsel, Father asserts that DHS failed

to make reasonable efforts to reunite him with the Children because DHS did

not provide him with any necessary paperwork or correspondence regarding

the Children. Father also claims the goal change to adoption was not in the

best interests of the Children because Father had fulfilled some of his

objectives and was on the verge of obtaining stable housing to assume his

parental responsibilities of the Children. No relief is due.

      Here, the trial court discussed these arguments as follows:

         Under 42 Pa.C.S.A. § 6351:

            (9) If the child has been in placement for at least 15
            of the last 22 months or the court has determined
            that aggravated circumstances exist and that
            reasonable efforts to prevent or eliminate the need
            to remove the child from the child’s parent, guardian
            or custodian or to preserve and reunify the family
            need not be made or continue to be made, whether
            the county agency has filed or sought to join a
            petition to terminate parental rights and to identify,
            recruit, process and approve a qualified family to
            adopt the child unless:

               (i) the child is being cared for by a relative
               best suited to the physical, mental and moral
               welfare of the child;

               (ii) the county agency has documented a
               compelling reason for determining that filing a
               petition to terminate parental rights would not
               serve the needs and welfare of the child; or




                                      -6-
J-S89033-16


                (iii) the child’s family has not been provided
                with necessary services to achieve the safe
                return to the child’s parent, guardian or
                custodian within the time frames set forth in
                the permanency plan.

            The Children were in placement for over two years, and
         [the Community Umbrella Agency] has made numerous
         attempts to reach out to Father and assist him in meeting
         his FSP objectives. Certified letters were sent and signed
         by Father at his only known address. Father was present
         at three [c]ourt hearings indicating that he had notice of
         the hearings, and for all of the hearings after May 20,
         2013, Father was represented by counsel in all of the
         proceedings. Further, by Father’s own admission, he was
         aware of the Children being in DHS[’s] care since the
         inception of these cases and has until recently resided in
         the same place since 2012 and that DHS and the [c]ourts
         had his address. Based on the record, Father had been re-
         referred to [the Achieving Reunification Center (“ARC”)] on
         multiple occasions and has not completed them. Further,
         Father was informed on the days he was present in court
         of what his objectives were and offered an opportunity to
         meet [these] objectives.

            For the foregoing reasons, the [c]ourt made reasonable
         efforts to reunify Father with the Children.

Trial Ct. Op. at 5-6 (footnotes and citations to record omitted). Therefore,

we agree with counsel that a review of the facts and the law establish that

this issue is frivolous.

      In the second issue identified by counsel, Father argues that DHS

failed to prove by clear and convincing evidence that Father’s parental rights

to the Children should be terminated under 23 Pa.C.S. § 2511(a)(1), (2),

(5), (8), and (b).         Father contends that the conditions that led to his

previous neglect of the Children have been remedied, and Father is best



                                        -7-
J-S89033-16


suited to provide for the Children’s developmental, physical, and emotional

needs. No relief is due.

      DHS sought involuntary termination of Father’s parental rights on the

following grounds:

         § 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:

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

                                 *    *    *


                                     -8-
J-S89033-16



            (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. § 2511(a)(1), (2), (5), (8), and (b).

      “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 at 1117.

         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.



                                     -9-
J-S89033-16


In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (internal citations

omitted).

      With respect to subsection 2511(a)(1), our Supreme Court has held as

follows:

              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 Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).

      Further, this Court has stated:

           the trial court must consider the whole history of a given
           case and not mechanically apply the six-month statutory
           provision. The court must examine the individual
           circumstances of each case and consider all explanations
           offered by the parent facing termination of his or her
           parental rights, to determine if the evidence, in light of the
           totality of the circumstances, clearly warrants the
           involuntary termination.

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

      Moreover, under Section 2511(b), the trial court must consider

whether termination will meet the child’s needs and welfare.         In re C.P.,

901 A.2d 516, 520 (Pa. Super. 2006). “Intangibles such as love, comfort,

security, and stability are involved when inquiring about the needs and

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

the parent-child bond, paying close attention to the effect on the child of



                                       - 10 -
J-S89033-16


permanently      severing   the   bond.”   Id.   at   520   (citations   omitted).

Significantly:

         In this context, the court must take into account whether a
         bond exists between child and parent, and whether
         termination would destroy an existing, necessary and
         beneficial relationship.

            When conducting a bonding analysis, the court is not
         required to use expert testimony. Social workers and
         caseworkers can offer evaluations as well. Additionally,
         Section 2511(b) does not require a formal bonding
         evaluation.

In re Z.P., 994 A.2d at 1121 (citations omitted).

      Our Supreme Court has stated:

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


                                      - 11 -
J-S89033-16


         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 his or
         her 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 his or her child.           An
         incarcerated parent is expected to utilize all available
         resources to foster a continuing close relationship with his
         or her children.

In re B., N.M., 856 A.2d at 855 (citations and quotation marks omitted).

“[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.” Id. at 856.

      Instantly, the court concluded:

         [T]here is unrefuted evidence that since the Children came
         into DHS[’s] care, they have not resided with Father.
         Father’s visits essentially disappeared from the Children’s
         lives. There was no testimony presented that Father made
         any outreach to the Children either while he was on bed
         rest or while he was incarcerated. There was also no
         mention of any outreach of Father to the Children. Father
         attended only three court hearings, one court hearing in
         2012 and two in 2013. In addition to Father’s three court
         appearances, Father only attended three visits in the year
         preceding the filing of the Petition for Termination:
         February 10, 2015, June 10, 2015 and July 8, 2015.




                                      - 12 -
J-S89033-16


          This case is not only one where Father stopped showing
       up for his Children, but through his own inaction or
       criminal behavior has not been successful in fulfilling any
       of his FSP objectives which were mainly drug and alcohol
       treatment and attend programs through ARC.            Father
       admitted that for at least ten months he was neither able
       to care for the Children nor fulfill his FSP objectives; for
       five months he had been in bed rest after being shot.
       Father was unable to care for his Children after July 8,
       2015 because he was incarcerated for five additional
       months.

          Because Father abdicated his parental responsibilities
       more than six months prior to the actual termination
       hearing and made no affirmative actions to remain in the
       Children’s lives, the [c]ourt did not err in terminating
       Father’s parental rights . . . .

                                *     *      *

          [Furthermore,] [t]here was no testimony of a bond
       between Father and the Children. Father spent less than
       three hours with them in the last eighteen months.

                                *     *      *

          Specifically, during Father’s only visits with D.D.M., the
       visit was cut short because of Father’s irate behavior.
       Father was able to visit L.A.N. on two other occasions in
       2015.

          Conversely, there was testimony that the Children are
       bonded with their respective foster parent. L.A.N. has
       been in her current placement for two years and calls her
       foster parent “Momma De.” D.D.M. has been in placement
       since she was three months old, and she calls her foster
       parent “mommy.” This [c]ourt found that the Children’s
       main source of “love, protection, guidance and support”
       has been with their respective foster parent, and Father’s
       interactions were almost non-existent. The [c]ourt further
       found that there would be no detrimental harm if Father’s
       parental rights were terminated.




                                    - 13 -
J-S89033-16


         Based on the foregoing, this [c]ourt properly found that
         termination of Father’s parental rights would best serve
         the needs and welfare of the Children.

Trial Ct. Op. at 8-10 (citations to record omitted).            Thus, following our

review of the record and the law, we agree with Father’s counsel that any

appeal from this declaration is frivolous.

      Finally,   regarding   Father’s    last    issue,   we   have   conducted   an

independent review of the record and discovered no other issues of arguable

merit. See Orellana, 86 A.3d at 882 n.7. Accordingly, we grant counsel’s

motion to withdraw and affirm the trial court’s decrees.

      Decrees affirmed. Counsel’s motion to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2017




                                        - 14 -
                                                                                         Circulated 12/30/2016 01 :56 PM




          IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COYNTY
                          FAMILY COURT DIVISION
                            JUVENILE BRANCH
                                                                                                          ! .



In The Interest Of:                                    CP-5l-DP-0001492-2012
                                                       t: /Z o/~/Jf1__ o CJ {)0       ! ff;;?·   ;J tJ IS
L.A.N ., a Minor                                       FID: 51-FN-002326-2012

Appeal of M.N., Father                                  149 EDA 2016

In The Interest Of:                                    CP-51-DP-0000110-2013                          .
                                                      (1/J- <;;. f//   c)()(!)tJ I   f3 · df)/5°
D.D.M., a Minor                                        FID: 51-FN-002326-2012

Appeal of M.N., Father                                 107 EDA 2016


                                             OPINION
        This Opinion is submitted relative to the appeal of Father, M.N. ("Father"), from this

Court' s Order dated December 11, 2015. For the reasons discussed, this Court respectfully

submits that its decision should be affirmed. This case is one where the Father abandoned L.A.N.

and D.D.M. (collectively referred to as "the Children"). Father presented two main reasons for

his extended absence from the Children: a recent five month incarceration and being bedridden

after being shot in his groin. He did not keep in contact with the Children or the social services

team to maintain a relationship despite his physical limitations/incarceration.


                                            Background


       On August 31, 2012, L.A.N. was adjudicated dependent and committed to OHS care. On

January 24, 2013, D.D.M. was adjudicated dependent and committed to OHS care.

       The Petitions for Involuntary Termination of Parental Rights was filed on November 24,

2015. The Termination Hearing was held on December 11, 2015. During the hearing, the Court

heard from two witnesses: Precious Randall (APM CUA) and Father.

                                                  1
             Ms. Randall testified that Father's FSP objectives were: random drug screens, follow

    CEU recommendations and to attend ARC (parenting, reunification, visitation, anger

    management, drug and alcohol, drug and alcohol support, job training, housing and

    employment). N.T. 12/11/15 at 8. Ms. Randall indicated that despite Father receiving certified

    mail with the Children's visitation schedules, Father only attended 3 total visits with the Children

    in 2015. Id. at 10, 29-30. There were 3 visits with L.A.N. 1 (February 10, 2015, June 10, 2015 and

    July 8, 20152) and one with D.D.M.3 (June 10, 2015). Id. at 10. On June 10, 2015, the visit

    between Father and the Children was cut short because of Father's irate behavior. Id. at 10.


             Ms. Randall also indicated that although Father was referred to ARC three times, he

    never followed up on the referrals. Id. at 9. Father was sent numerous notices at the only address

    he had listed. Id. at 11. On one occasion, Ms. Randall met Father outside of his listed address on

    October 22, 2014. Id. When Ms. Randall spoke to Father, she stated that the Children were in

    placement and talked about his visitations, ARC, the ongoing services available and the need for

    a home assessment. Id. at 11-12. A home assessment was scheduled, but Father was not present.

    Id. at 12.


            As of the date of the termination petitions for the Children, Father had not completed any

of his FSP objectives. Id. at 13.


            Ms. Randall then testified that L.A.N. had a strong bond with her foster parent over the

last two years and called her "Momma De." Id. at 14, 23. Additionally, Ms. Randall stated that




1
    For a total of 3 hours in the past 18 months. Id. at 22.-23.
2
    Father was incarcerated on the same day as this visitation. Id. at 27.
3
    For a total of l hour i..n the last 18 months. Id. at 23.

                                                               2
    D.D.M., who has been with her foster mother since she was three months old, calls her foster

    mother"mommy."        Id. at 14-15, 25.


            On December 11, 2015, Father testified that this was his first time in the new courtroom 4.

    Id. at 32. During direct examination, Father stated that he was aware of the OHS case since the

    Children first came into care because he was living with L.M. ("Mother") during his first

    appearance in Court. Id. at 31-32. Prior to L.A.N.'s placement with OHS, she had never lived

    with Father, and D.D.M. was not yet born. Id. at 34, 39. The Children were taken out of Mother's

    ("Mother") care while Father was living with his sister. Id. at 39.


            Father also testified that because he was locked up for five months in 2015, he was not

    able to complete his FSP objectives. Id. at 35, 37. Father admitted that he had resided in the same

place since 2012 and that CU A had his proper address which changed recently as a result of a

    fire. Id. at 36, 38, 43-44. Father also testified that he was on bed rest for about 5 months in 2014

after being shot in his right groin area and was not able to care for his children. Id. at 36, 42-43.

Father had access to a phone while he was on bed rest but did not call the Children. Id. at 42.

Father stated that "I love my daughters ... I mean I'm going through something right now ... " Id.

at 40.


           After closing arguments, the Court made the following findings as to the credibility of the

witnesses: 1) Ms. Randall was credible and her testimony accepted in full; and 2) Father was

credible and his testimony accepted in full.


           In particular, the Court stated:




4
    It should be noted that the new Family Court building has been open since January 4, 2015.

                                                           3
                   Ms. Randall testified that [F]ather made no visits to [C]ourt. That is not the case.
                   Father came to [C]ourt November 26, 20125, looking at the permanency review
                   order. That was his first hearing ... Then for a period of time father did not show
                   up ... Then I did not see dad until May 20, 20136 ... At that time, we did the
                   paternity test [for D.D.M.] ... I saw father again August 19, 20137• This states
                   [that] on August 19, 2013 father has weekly supervised visits. At that point visits
                   were consistent and in fact I ordered father's visits, they could be
                   modified ... Then in all honesty I didn't see father any more. Those are the times
                   that father showed up in court, I took the time to go through all of my notes to
                   determine when father was here. And the times that I've given you are the times
                   that father appeared based upon my notes8 ..• But since then father has been
                   absent ... I have nothing for 2014. I have nothing for 2015.



Id. at 50-51 ( emphasis added). The Court further noted that Father had an affirmative duty to the

Children "even when things are going bad." Id. at 51. To Father, the Court stated that "for some

reason at some point in time you gave up and stopped. But the [C]hildren were cared for by

someone else. Someone else took over your job because you abdicated your role that [ was] non-

transferable." Id. at 52.


     The Court found that the Child Advocate had met its burden and presented clear and

convincing evidence to support the termination of Father's parental rights under 23 Pa. C.S. §§

2511 ( a)(l ),(2), (5) and (8) of the Adoption Act. Id. at 52. Pursuant to 23 Pa. C.S. § 2511 (b), the

Court further found that with L.A.N., there was a "bond but not a substantial bond," and there


5
  See also Court's Exhibit "A" (Permanency Order from November 26, 2012 for L.A.N.). During Father's first
hearing, he was appointed counsel and referred for a forthwith drug screen.
6
  See also Court's Exhibit "B" (Permanency Orders from May 20, 2013 for the Children.). During this hearing,
Father had attended 9 out of 11 visits of supervised visits. Father's visits were permitted to be modified after a
negative drug screen. Father was also re-referred to the ARC program. DHS was asked to explore paternal relative's
sibling family as a possible placement resource,
7
  See also Court's Exhibit "C" (Permanency Orders from August 19, 2013 for the Children). Father's visits with
L.A.N. were to be modified to unsupervised day visits, with a negative drug screen. Father's visits with D.D.M.
8
  From the Court Orders ofL.A.N., Father had been present three out of eleven hearings (excluding the Termination
Hearing and continuances) since the Adjudication Hearing. The dates Father missed for L.A.N. were:
8/31/ I 2(adjudicatory hearing), 11/18/13, 1/8/14, 4/1 /14, 6/23/14, 9/16/14, 4/22/15, 9/11/15. The dates Father missed
for D.D.M since a paternity test was ordered on May 20, 2013 for him were: 8/19/13, l/8/14, 4/1/14, 6/23/14,
9/16/14, 4/22/15, 9/11/15.



                                                           4
    would be no irreparable harm if the bond was terminated. Id. at 52-53. However, the Court did

    find there was a bond with L.A.N. and her foster parent. Id. at 53.With D.D.M., the court found

    that Father had only visited the child once on June l 0, 2015 and was not bonded to the child. Id.

    at 53-54. Based on Father's one visit with the child, there would be no irreparable harm if

    Father's rights were terminated. Id. at 54. However, the Court found that D.D.M. had a loving

    and supportive bond with her foster parent. Id.


           On appeal, Father argues that":

              1. Whether under the Juvenile Act, of 42 Pa.C.S.A. Section 6351, and 55 Pa.Code
                 Section 3130.74, in accordance with the provisions of the Federal Adoption and Safe
                 Families Act, 42 U.S.C. Section 671 et seq., reasonable efforts were made to reunite
                 Father with his child and whether the goal of adoption was the disposition best suited
                 to the safety, protection and physical, mental and moral welfare of the child.

              2. Whether it was proven by clear and convincing evidence that Father's parental rights
                 should be terminated under Sections 2511 (a)(2) and 2511 (b)[.]

      I.        Reasonable Efforts were made to Reunite Father with the Children and the Goal

                of Adoption was in the best interest of the Children.

              Father argues that there were no reasonable efforts made to reunify him with the

     Children. Under 42 Pa. C.S.A § 6351:

                      (9) If the child has been in placement for at least 15 of the last 22 months or the
                     court has determined that aggravated circumstances exist and that reasonable
                     efforts to prevent or eliminate the need to remove the child from the child's
                     parent, guardian or custodian or to preserve and reunify the family need not be
                     made or continue to be made, whether the county agency has filed or sought to
                     join a petition to terminate parental rights and to identify, recruit, process and
                     approve a qualified family to adopt the child unless:
                               (i) the child is being cared for by a relative best suited to the physical,
                               mental and moral welfare of the child;
                               (ii) the county agency has documented a compelling reason for
                               determining that filing a petition to terminate parental rights would not
                               serve the needs and welfare of the child; or


9
    Sic.

                                                        5
                              (iii) the child's family has not been provided with necessary services to
                              achieve the safe return to the child's parent, guardian or custodian within
                              the time frames set forth in the permanency plan.


              The Children were in placement for over two years, and CUA has made numerous

        attempts to reach out to Father and assist him in meeting his FSP objectives. N.T. 12/11/15 at

        11, 22-23. Certified letters were sent and signed by Father at his only known address. Id. at 29-

        3 0. Father was present at three Court hearings indicating that he had notice of the hearings, and

        for all of the hearings after May 20, 2013, Father was represented by counsel in all of the

        proceedings. Further, by Father's own admission, he was aware of the Children being in OHS

        care since the inception of these cases and has until recently resided in the same place since

        2012 and that OHS and the Courts had his address      ID.   Id. at 36, 38. Based on the record, Father

        had been re-referred to ARC on multiple occasions and has not completed them. Id. at 9.

        Further, Father was informed on the days he was present in court of what his objectives were

                                                             11.
        and offered an opportunity to meet this objectives


              For the foregoing reasons, the Court made reasonable efforts to reunify Father with the

        Children.


        II.     There was Sufficient Evidence to Change the Goal to Adoption and Terminate

               Father's Parental Rights Under 2511(a) and 2511(b).

              A court's decision on whether to terminate parental rights is governed by the statutory

requirements of 23 Pa. C.S. § 2511. In re Child M., 681 A.2d 793, 797 (Pa. Super. 1996). The



1   °
   Father does not currently reside in his house as a result of a recent fire. ]Q. at 38.
11
  On November 26, 2012, Father was referred for a forthwith drug screen. On May 20, 2013, Father was offered
the opportunity to modify his visits if he had a negative drug screen. Also during the May hearing, Father was
offered an opportunity to prove paternity for 0.0.M and was offered supervised visits with the child. On August
19, 2013, Father was re-referred to the CEU and his visits were modified with L.A.N. to unsupervised visits.

                                                        6
"party seeking to terminate parental rights bears the burden of proving by clear and convincing

evidence the statutory grounds for doing so." Id. Appellate review of an order terminating

parental rights is limited to a determination of whether the decision of the trial court is supported

by competent evidence. In re B.L.W., 843 A.2d 380, 383 (Pa. Super. 2004). "Absent an abuse of

discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the

decree must stand." Id.

       Father's second issue questions whether there is clear and convincing evidence that

Father's parental rights should be terminated under 2511 (a) and 2511 (b).


           a. There was Sufficient Evidence to Support 2511(a).


       In the present case, DHS brought its petition for involuntary termination of Father's

parental rights under 23 Pa. C.S. §§ 2511 (a)(l ),(2),(5), and (8) of the Adoption Act, which

provide, in pertinent part, that the rights of a parent may be terminated upon 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


                                                  7
             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 would best serve the needs and welfare of
             the child.

        The Court found that there was sufficient evidence to terminate Father's parental rights

based on 2511 (a)(!), (2), (5) and (8).

        In the instant case, there is unrefuted evidence that since the Children came into OHS

care, they have not resided with Father. Father's visits never went past unsupervised day visits.

N. T. l 2/l l/l 5 at 5 l-52. After a period of time, Father essentially disappeared from the

Children's lives. There was no testimony presented that Father made any outreach to the

Children either while he was on bed rest or while he was incarcerated. Id. at 42. There was also

no mention of any outreach of Father to the Children. Father attended only three court hearings,

one court hearing in 2012 and two in 2013. In addition to Father's three court appearances,

Father only attended three visits in the year preceding the filing of the Petition for Termination:

February JO, 2015, June 10, 2015 and July 8, 2015. Id. at JO.

       This case is not only one where Father stopped showing up for his Children, but through

his own inaction or criminal behavior has not been successful in fulfilling any of his FSP

objectives which were mainly drug and alcohol treatment and attend programs through ARC. Id.

at 8. Father admitted that for at least ten months he was neither able to care for the Children nor

fulfill his FSP objectives; for five months he had been on bed rest after being shot. Father was

unable to care for his Children after July 8, 2015 because he was incarcerated for five additional

months. Id. at 27, 35, 37.



                                                   8
         Because Father abdicated his parental responsibilities more than six months prior to the

 actual termination hearing and made no affirmative actions to remain in the Children's lives, the

 Court did not err in terminating Father's parental rights under 2511 (a)( l ), (2), (5), and (8).


             b. There was no parent-child bond under 2511(b)


         There was no testimony of a bond between Father and the Children. Father spent less

 than three hours with them in the last eighteen months. Id. at 22-23.


             There is no simple or easy definition of parental duties. Parental duty is best
             understood in relation 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 chi Id's
             lite.

In re Z.P ., 994 A.2d 1108, 1118-19 (2010).

        Specifically, during Father's only visit with D.D.M., the visit was cut short because of

Father's irate behavior. Id. at l 0. Father was able to visit L.A.N. on two other occasions in 2015.

Id. at 10.


        Conversely, there was testimony that the Children are bonded with their respective foster

parent. Id. at 14-15, 23, 25. L.A.N. has been in her current placement for two years and calls her

foster parent "Momma De." Id. at 14, 23. D.D.M. has been in placement since she was three

months old, and she calls her foster parent "mommy." This Court found that the Children's main

source of "love, protection, guidance and support" has been with their respective foster parent,




                                                   9
and Father's interactions were almost non-existent. Id. at 51-54. The Court further found that

there would be no detrimental harm if Father's parental rights were terminated. Id.


        Based on the foregoing, this Court properly found that termination of Father's parental

rights would best serve the needs and welfare of the Children.


                                            Conclusion


For these reasons, the Court respectfully submits that its decision be affirmed.



                                                      BY THE COURT,




Dated: June 29, 2016




                                                10
