J-S55030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF E.C.H., A MINOR             IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: J.T.H., III, FATHER

                                                    No. 474 EDA 2016


             Appeal from the Decree entered January 22, 2016,
           in the Court of Common Pleas of Philadelphia County,
             Family Court, at No(s): CP-51-AP-0000878-2015 &
                         CP-51-DP-0000604-2012.




IN THE INTEREST OF C.M.H., A MINOR             IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: J.T.H., III, FATHER

                                                    No. 476 EDA 2016


             Appeal from the Decree entered January 22, 2016,
           in the Court of Common Pleas of Philadelphia County,
             Family Court, at No(s): CP-51-AP-0000879-2015 &
                         CP-51-DP-0001109-2012.


BEFORE: LAZARUS and DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                          FILED AUGUST 02, 2016




*Former Justice specially assigned to the Superior Court.
J-S55030-16



       Appellant, J.T.H., III, (“Father”) appeals from the decrees involuntarily

terminating his parental rights to his two daughters, E.C.H. and C.M.H.

pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a) and (b). We affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

       E.C.H. was born in September 2008, and C.M.H. was born in

September 2009. Father and M.Z. (“Mother”) were never married. In April

2012, the children lived with Mother. Father was incarcerated at the time.

       The family became known to the Philadelphia Department of Human

Services (“DHS”) on April 7, 2012, when St. Christopher’s Hospital for

Children reported that both children had multiple bruises and healing

fractures, and that C.M.H.’s spine had been severed. A physician concluded

that the children’s injuries were inconsistent with Mother’s explanations, and

indicated physical abuse.1

       Pursuant     to   emergency       protective   orders,   the   children   were

temporarily committed to DHS. DHS placed E.C.H. in foster care after her

release from the hospital on April 10, 2012. C.M.H. remained in the hospital

until June 26, 2012. Upon her release, DHS placed C.M.H. in the care of J.C.,

the children’s maternal grandmother. C.M.H. has no feeling from the waist




____________________________________________


1
  Mother ultimately served a term of incarceration after pleading guilty to
aggravated assault and endangering the welfare of a child. She voluntarily
relinquished her parental rights in September 2015.



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down,   has   learned   to    walk   again   with   braces,   and   requires   daily

catheterization and specialized bowel care.

     In July 2012, the court adjudicated the children dependent, committed

them to DHS, and placed them both in kinship foster care with J.C., where

they have remained. The court also ordered that Father was to have

supervised visits at DHS upon his release from incarceration.

     Father was released from prison in October 2013 and received a

Family Service Plan (“FSP”). The court held a permanency review hearing on

October 29, 2013, and ordered Father to participate in caregiver meetings at

the Children’s Crisis Treatment Center (“CCTC”) and participate in medical

training to learn how to care for C.M.H. The court also referred Father for a

psychological evaluation, and ordered DHS to explore supervised visits with

Father by agreement of the parties.

     At a March 24, 2014 permanency review hearing, the court found

Father to be fully compliant with his FSP objectives.         Based on concerns

expressed by DHS, the court ordered Father to go to the Clinical Evaluation

Unit (“CEU”) for drug and alcohol monitoring, and to Behavioral Health

Services (“BHS”) for evaluation. The court also ordered Father to continue

medical training necessary for the care of C.M.H., attend C.M.H.’s physical

therapy appointments, continue therapeutic visits with both children, and

attend counseling with J.C.

     At each of the permanency review hearings that followed, DHS and

others expressed concerns regarding Father’s adherence to and participation

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in court-ordered programs. In June 2014, Father’s drug and alcohol

treatment program reported that he had attended only two of his last ten

scheduled sessions, and that he had tested positive for oxycodone on June

24, 2014. Additionally, Father consistently arrived late for C.M.H.’s physical

therapy at Shriner’s Hospital for Children, often left early, and did not

interact much with his daughter. The Center for Families and Relationships

reported in August 2014 that Father had attended twelve out of fifteen

scheduled therapy sessions with J.C.

       At an August 13, 2014 permanency review hearing, the court again

ordered Father to CEU for drug screening and monitoring.       The court also

ordered Father to continue with visitation and to attend C.M.H.’s physical

therapy sessions.2 The court also ordered the Community Umbrella Agency

(“CUA”), which was handling the case, to refer Father for a bonding

evaluation.    The bonding evaluation concluded, inter alia, that Father had

trouble engaging with both children at once.

       On November 4, 2014, the court ordered DHS to take over the case

from CUA and to appoint an experienced social worker.        The court again

referred Father for a bonding evaluation with both children.      Therapeutic

visits with Father and each child continued, as did family therapy sessions

with Father and J.C.

____________________________________________


2
  C.M.H. refused to attend physical therapy sessions with Father alone so
J.C. also attended those sessions.



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      At a December 15, 2014, permanency review, the court found Father

fully compliant and noted that, even though the children had been in foster

care for 15 of the last 22 months, reunification with Father was imminent.

After learning of Father’s positive drug screening, the court ordered Father

to provide a release of his medical records regarding prescriptions he had

received for medications.     The court also ordered DHS explore increased

hours for Father’s visits with children.

      At a permanency review hearing held on March 19, 2015, the court

found Father substantially compliant, but on the recommendation of DHS,

ordered him to reengage with and complete drug and alcohol treatment

program, and to complete three random drug screens. After the hearing on

that same date, as well as on June 4, 2015, Father tested positive for drugs

in his system. On both occasions, Father’s creatinine level was abnormally

low, which suggested that he had attempted to dilute his urine.

      At a June 11, 2015, permanency review, Father was ordered to

undergo a parenting capacity evaluation, including a full psychological

evaluation. Father was also ordered to take five random drug screens.

      On July 25, 2015, DHS held an FSP meeting and changed the

placement goal to adoption. Under the new FSP, Father’s objectives were to

obtain safe housing, participate in drug and alcohol treatment, consistently

visit with the children, and continue to attend counselling with J.C. in order

to improve their relationship.




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J-S55030-16



      At a September 11, 2015, permanency review hearing, the court

ordered Father’s supervised visits to continue. Noting that the children had

been in placement for thirty-nine months, the court ordered Father to

comply strictly with all visitation and therapy schedules.

      In November 2015, Father underwent a parenting capacity evaluation

after which the evaluator expressed concerns that Father (1) used drugs to

cope with stress, (2) provided conflicting accounts of his mental health

treatment, substance abuse and criminal histories; (3) inconsistently visited

with the children; (4) inconsistently participated in C.M.H.’s medical

appointments and mental health appointments for both children; (5)

possessed limited insight into the impact on his children if they were to be

removed from J.C.’s care; and (6) was unable or unwilling to engage and

interact with the children during visits.

      On January 4, 2016, DHS filed a Petition for the Involuntary

Termination of Father’s Parental Rights (“TPR petition”) as to each child,

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

      On January 21, 2016, and again on the next day, the Family Court

held an evidentiary hearing on the TPR Petitions.       The Agency presented

testimony from a parenting capacity evaluator, a trauma clinician, and

several caseworkers who had been assigned to the case. Father testified on

his own behalf. At the conclusion of the hearing, the Family Court granted

the petitions based upon Section 2511(a)(1) and (2), and Section 2511(b).

This timely appeal by Father follows.

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ISSUES ON APPEAL

      Father raises the following issues on appeal:

         1. Whether the [Family Court] erred and/or abused its
            discretion by terminating the parental rights of [Father]
            pursuant to 23 Pa.C.S.A. [§] 2511(a)(1) where [Father]
            presented evidence that he has performed his parental
            duties, by fulfilling his [FSP] goals and going beyond
            that and completing everything that was requested of
            him. Father was not provided with reasonable efforts to
            reunify with his children.

         2. Whether the [Family Court] erred and/or abused its
            discretion by terminating the parental rights of [Father]
            pursuant to 23 Pa.C.S.A. [§] 2511(a)(2) where [Father]
            presented evidence that he has remedied his situation
            by meeting his goal of continuing contact with his
            children and completing all the has [sic] the present
            capacity to care for his children in his home with the
            help of his parents.

         3. Whether the [Family Court] erred and/or abused its
            discretion by terminating the parental rights of [Father]
            pursuant to 23 Pa.C.S.A. [§] 2511(b) where evidence
            was presented that established [Father] and his children
            were never given a reasonable chance for a close
            bond[.]        [The   Agency]    permitted     [Maternal
            Grandmother] to isolate the children and undermine
            Father in his relationship with his children. The best
            interests of the children should be to incorporate
            [Father] and the paternal grandparents into the lives of
            these medically needy children.

Father’s Brief at 7.

LEGAL ANALYSIS

      The standard of review in termination of parental rights cases requires

appellate courts “to accept the findings of fact and credibility determinations

of the trial court if they are supported by the record.” In re Adoption of


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J-S55030-16



S.P., 47 A.3d 817, 826 (Pa. 2012). “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. This Court may reverse a decision based on

an   abuse    of   discretion   only    upon   demonstration         of   “manifest

unreasonableness, partiality, prejudice, bias, or ill-will.”   Id.    We may not

reverse, however, merely because the record would support a different

result.” Id. at 827.

      Appellate courts give great deference to trial courts that often have

first-hand observations of the parties spanning multiple hearings. In re

T.S.M., 71 A.3d 251, 267 (Pa. 2013). The Orphans’ Court is free to believe

all, part, or none of the evidence presented and is likewise free to make all

credibility determinations and resolve conflicts in the evidence. In re M.G.,

855 A.2d 68, 73-74 (Pa. Super. 2004). In addition, in order to affirm the

termination of parental rights, this Court need only agree with any one

subsection under Section 2511(a).      See In re B.L.W. 843 A.2d 380, 384

(Pa. Super. 2004) (en banc).

      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). We

have explained that “[t]he standard of clear and convincing evidence is

defined as testimony that is so clear, direct, weighty and convincing as to




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J-S55030-16


enable the trier of fact to come to a clear conviction, without hesitance, of

the truth of the precise facts in issue.” Id. (citations omitted).

      Termination Pursuant to 2511(a)(1)

      Section 2511(a)(1) provides that the trial court may terminate

parental rights if the petitioner establishes by clear and convincing evidence

that for six months, the parent demonstrated a settled intent to relinquish a

parental claim or a refusal or failure to perform parental duties:

      a)     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 has evidenced a settled purpose of
                  relinquishing parental claim to a child or has
                  refused or failed to perform parental duties.


23 Pa.C.S.A. 2511(a)(1). See In re Z.S.W., 946 A.2d 726, 730 (Pa. Super.

2008) (interpreting Section 2511(a)(1) to require petitioner to prove by

clear and convincing evidence a settled intent to relinquish parental rights or

a refusal or failure to perform parental duties).

      This Court has defined “parental duties” in general as the obligation to

provide safety, security and stability for the child affirmatively and

consistently:

           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

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J-S55030-16


         obligation is a positive duty which requires affirmative
         performance. This affirmative duty … 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.

Id.

      Moreover, a parent must exercise reasonable firmness in resisting

obstacles placed in the path of maintaining the parent child relationship:

         Parental duty requires that the parent act affirmatively
         with good faith interest and effort, and not yield to every
         problem, in order to maintain the parent-child relationship
         to the best of his or her ability, even in difficult
         circumstances.     A parent must utilize all available
         resources to preserve the parental relationship, and must
         exercise reasonable firmness in resisting obstacles placed
         in the path of maintaining the parent-child relationship.

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

omitted).

      And most importantly, “parental rights are not preserved by waiting

for   a more   suitable   or   convenient time    to   perform one’s parental

responsibilities while others provide the child with her physical and

emotional needs.” Id.

      In the instant case, the Family Court properly concluded that DHS met

the requirements of Section 2511(a)(1).       The court found that, during the

relevant period prior to DHS’s filing of the TPR Petitions on January 6, 2016,

Father had failed to comply with court orders and to fulfill his FSP objectives

of addressing his drug use, attending family therapy, consistent visitation,

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and being able to perform the necessary medical procedures for C.M.H. The

court explained:

        Father did not complete drug and alcohol treatment during
        the six-month period prior to the filing of the [TPR]
        petitions. He tested positive for benzodiazepines on June
        5, 2016, and was ordered by the court and referred by
        [the Agency] to re-engage with treatment. He has not
        done so since June 9, 2015, meaning that he has not
        sought treatment once during the six-month period. This
        is part of a pattern stretching back beyond the relevant
        period, since Father was out of treatment from February 4,
        2015, to March 23, 2015.         Father tested positive for
        suboxone on November 17, 2014, and December 1, 2014.
        [He] tested positive for marijuana and benzodiazepines on
        March 19, 2015, and his creatinine level was also 27.95,
        indicating that Father had diluted his urine in order to fool
        the drug screens. Father was ordered by the [Family
        Court] to complete six random drug screens. Father came
        to court on November 3, 2015, filled out the paperwork
        and left without submitting a urine sample.           Father
        submitted a fake urine sample at a December 2, 2015,
        drug screen. The social worker attempted to reach out to
        Father to return for another drug screen, but was not able
        to do so. Father completed zero out of six random drug
        screens ordered by the court. At the same time, [he] did
        not complete his drug and alcohol program, which was
        dual diagnosis. Father also was not compliant with his
        trauma therapy sessions, and is not a stable resource for
        the traumatized Children. Father stopped participating in
        the Children’s trauma therapy. Father attended physical
        therapy sessions intermittently, and did not pay attention
        during the sessions. The hospital social worker testified
        credibly that Father could injure [C.M.H.] if he performed
        the catheterization improperly. Father testified that he
        was trained in the procedure, but told Dr. Williams that he
        had never actually performed the procedure. [C.M.H.]
        would not allow Father to perform the necessary
        procedures on her, since she does not trust him. Father is
        not in family therapy with the Children [and Maternal]
        Grandmother. Father attended only 28 of 40 scheduled
        visits. Over the six months prior to the filing of the [TPR
        petitions], Father has failed to perform key parental duties

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         by refusing to engage in drug and alcohol treatment, not
         meeting his FSP goals successfully and not complying with
         court orders. Father’s behavior extends prior to the six
         month period, since he had failed to successfully complete
         a dual diagnosis drug and alcohol program, medical
         training and consistent visits with the Children. Father has
         an affirmative duty to parent. Father has failed, refused
         and evidenced a settled purpose of relinquishing parental
         claims to the Children by not performing parental duties.
         These facts were demonstrated by clear and convincing
         evidence, so the trial court did not err or abuse its
         discretion by terminating Father’s parental rights under
         [Section 2511(a)(1)].

Family Court’s Opinion, 3/24/16, at 7-8 (citations omitted).

      Father argues that the Family Court erred in terminating his parental

rights pursuant to Section 2511(a)(1) because “[t]he evidence at trial clearly

demonstrated that [he] repeatedly tried to perform his parental duties but

was not provided an opportunity to perform [them] because [Maternal

Grandmother] was present during all contact he had with his children.

Father’s Brief at 11. According to Father, “Maternal Grandmother sabotaged

[his] attempts to build a relationship and bond with his children.” Id.

      Our review of the record refutes these claims.      Father’s arguments

focus on the credibility of the witnesses and we accept the Family Court’s

crediting the testimony of the Agency’s witnesses over Father’s testimony.

In re M.G., supra. Additionally, we note that Maternal Grandmother was

not called to testify by any party, and there is no evidence of record to

support Father’s claim that she interfered with his interaction with his

daughters.   Indeed, the testimony would support the opposite conclusion.

See, e.g., N.T., 1/21/16, at 139 (upon cross-examination by Father’s

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J-S55030-16



counsel, foster care social worker testifies that, during Father’s visits with

the children, Maternal Grandmother did not interfere). Finally, the same is

true with regard to the testimony of the efforts made by the Agency to

obtain reunification.   See, e.g., N.T., (upon cross-examination by Father’s

counsel, the children’s current caseworker testifies that he was 120%

committed to the case and that he fought hard for reunification).

      Accordingly,   the   Family   Court   did   not   abuse    its   discretion   in

terminating Father’s parental rights pursuant to 23 Pa.C.S. §2511(a)(1), and

we need not consider the other basis for termination under this section. See

B.L.W., supra.

      Termination Pursuant to Section 2511(b)

      We also agree with the Orphans’ Court’s determination that the

Agency met its burden under 23 Pa.C.S.A. §2511(b) and that terminating

Father’s parental rights is in the best interest of the Child.

      With respect to Section 2511(b), our analysis shifts focus from

parental actions in fulfilling parental duties to the effect that terminating the

parental bond will have on the child. Section 2511(b) “focuses on whether

termination of parental rights would best serve the developmental, physical,

and emotional needs and welfare of the child.” In re: Adoption of J.M.,

991 A.2d 321, 324 (Pa. Super. 2010).

      In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court

found that “intangibles such as love, comfort, security, and stability are

involved in the inquiry into the needs and welfare of the child.” In addition,

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the orphans’ court must also discern the nature and status of the parent-

child bond, with utmost attention to the effect on the child of permanently

severing that bond. Id.

     In cases where there is no evidence of a bond between a parent and a

child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d

753, 762-63 (Pa. Super. 2008). Thus, the extent of the bond-effect analysis

necessarily depends on the circumstances of the particular case. Id. at 763.

     In the instant case, the Family Court relied upon the testimony of

various witnesses presented by the Agency in concluding that Father

misunderstands his role as a parent for his school-age daughters and that no

bond exists between him and the children. In addition, the court found that

the children have bonded with Maternal Grandmother, and that they would

suffer irreparable harm if removed from her care:

           Dr. Williams testified that Father indicated that he was
        never engaged in family therapy with the Children, which
        contradicted other reports that [she] had reviewed. Father
        summarized his parental role as “child proofing the house”
        and ensuring that there were no small items on the ground
        for the Children to eat. This demonstrated a lack of
        understanding of the age-appropriate behaviors of the
        Children, who are six and seven years old. Father can only
        engage the Children one at a time, and often does not
        engage them at all. The Children are not excited for
        Father’s visits, they scream and protest. The Children
        often express their feelings that Father is not their “daddy”
        and they do not want him in their lives. [C.M.H.] refuses
        to allow Father to perform catheterization, because she
        does not trust him. She also tells Father she does not love
        him. Father never properly learned the catheterization
        procedure, which [C.M.H.] needs, and could harm her if it
        is performed incorrectly.      The [Agency] social worker

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        testified credibly that the Children know and reject Father,
        and would suffer no irreparable harm if his parental rights
        were terminated. Further, the Children’s therapist testified
        that it would be more traumatizing than the initial trauma
        [suffered] by the Children if they were removed from
        [Maternal Grandmother]. It would be in their best interest
        to be adopted by [Maternal Grandmother]. The Children
        have no parental bond with Father. Even after Father’s
        release from prison, Father was given the opportunity to
        create a bond with the Children, but he has failed to do so
        by not being consistent with his scheduled visits. Father
        attended only 28 out of 40 scheduled visits. The court
        heard testimony that the Children are each other’s
        greatest emotional support, and that they would both
        suffer irreparable harm if separated. The Children would
        suffer irreparable harm if removed from [Maternal
        Grandmother’s] care. The Children have a parent-child
        bond with [Maternal Grandmother], and consider her their
        mother. This bond helps the Children overcome their
        trauma. [Maternal Grandmother’s] diligent care helped
        [C.M.H.] walk again, and [she] is present at all trauma and
        physical therapy sessions.         [Maternal Grandmother]
        provides for the Children’s needs, cares for them when
        they are sick and is involved in their school. [Maternal
        Grandmother] is also highly experienced at performing the
        medical catheterization, and is the only person [C.M.H.]
        will permit to perform the daily bowel procedure on her.
        [The Agency] has met its burden of clear and convincing
        evidence that termination would not destroy an existing
        beneficial relationship with Father; therefore, the trial
        court did not commit error or abuse its discretion under
        [Section 2511(b)].

Family Court Opinion, 3/24/160, at 11-12 (citations omitted).

     Father   argues   that   his   children   have   never   been offered   the

opportunity to develop a bond with him or their paternal grandparents.

Father asserts that after Maternal Grandmother became the children’s “sole

guardian,” [] the children became totally dependent upon her for everything.

All contact with [his] family was halted and [he] was not permitted time

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alone with his daughter[s].”    Father’s Brief at 12.   According to Father,

“[w]ith the physical and emotional trauma that these children suffered it

would be in their best interest to have more than one person responsible for

meeting all of their physical and emotional needs.” Id. Brief at 18. Father

avers that, “[h]ad [he] and his family been allowed to have contact without

[Maternal Grandmother] present, there relationship could have flourished.”

Id. at 12.

Once again, the credibility of the witnesses’ testimony, and the weight to be

given it, are matters exclusively within the province of the Orphans’ Court as

fact finder.   In re M.G., supra.   Additionally, we note that neither of his

parents testified about their ability to care for the children. Thus, Father’s

claim fails.

      CONCLUSION

      In sum, our review of the record supports the Orphans’ Court’s

determination that the Agency met its statutory burden of proving by clear

and convincing evidence that Father’s parental rights should be terminated

pursuant to 23 Pa.C.S. §§ 2511(a)(1) and 2511(b). Accordingly, we affirm.

      Decrees affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/2/2016




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