J-S01017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: S.T.B.-R.,                  IN THE SUPERIOR COURT OF
A MINOR                                               PENNSYLVANIA



                       v.

APPEAL OF: J.M.R., FATHER

                                                     No. 1387 EDA 2015


                     Appeal from the Decree March 26, 2015
              In the Court of Common Pleas of Philadelphia County
             Domestic Relations at No(s): CP-51-DP-0000209-2013
                                          DP-51-AP-0000133-2015


BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                        FILED FEBRUARY 02, 2016

       Appellant, J.M.R. (Father), appeals from the decree entered March 26,

2015, involuntarily terminating his parental rights to his minor daughter,

S.T.B.-R., born in January 2007.1 After careful review, we affirm.

____________________________________________


1
   The trial court docket indicates that the parental rights of S.T.B.-R.’s
mother, S.B. (Mother), were terminated by a separate decree entered July
6, 2015. Mother is not a party to this appeal. Additionally, on July 6, 2015,
this Court entered an order per curiam, indicating that Father’s counsel had
failed to file a docketing statement, and remanding the case to the trial court
in order to determine whether Father had been abandoned by counsel. On
July 10, 2015, Father’s counsel filed a docketing statement. The trial court
held a hearing later that day, during which Father’s counsel indicated that
she had not abandoned Father. See N.T., 7/10/15, at 4. Father’s counsel
continues to represent him on appeal, and she has filed a brief on Father’s
behalf.
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     The trial court summarized the factual and procedural history of this

matter as follows.

           On January 29, 2013, [the Department of Human
           Services of Philadelphia County (“DHS”)] received a
           Child Protective [S]ervices (“CPS”) report alleging
           that [S.T.B.-R.]’s eldest sibling was afraid to return
           home due to [M]other’s untreated mental health
           issues. The report also alleged that [S.T.B.-R.]’s
           mother showed erratic behavior, suffered from
           anxiety, and appeared to be under the influence of
           drugs.    [S.T.B.-R.] resided with [M]other since
           Father was incarcerated. On January 29, 2013[,]
           DHS went to [S.T.B.-R.]’s school and learned that
           [S.T.B.-R.] was not enrolled in school. On the same
           day, DHS visited [M]other’s home[.] [M]other was
           present and stated to DHS that “she could not leave
           home because Michelle Obama was on her way to
           pick her up and escort her to the White House”. On
           January 29, 2013, DHS obtained an Order for
           Protective Custody (“OPC”) and [S.T.B.-R.] was
           placed with [S.T.B.-R.’s adult] sister. At that time
           Father    was    incarcerated    at  Curran-Fromhold
           Correctional. On January 31, 2013, at a Shelter
           Care hearing, the OPC was lifted and the temporary
           commitment to DHS was ordered to stand.

           At the Adjudicatory hearing, on March 8, 2013, the
           [trial] court discharged the temporary commitment,
           [and S.T.B.-R.] was adjudicated dependent and
           placed in foster care thr[ough] Friendship House. On
           May 21, 2013, a Family Service Plan (“FSP”) was
           developed for [M]other. At a Permanency Review
           Hearing on October 4, 2013, the trial court found
           that Father was incarcerated at SCI Camp Hill and
           that a criminal Stay Away Order was issued against
           Father. Father was referred to the CEU (“Clinical
           Evaluation Unit”) for a drug screen when he avails
           himself. Father was found in minimal compliance.
           Visits with the Father were held under advisement
           until further order of the court. The reason for the
           suspension of Father’s visits was the fact that
           [S.T.B.-R.] witnessed episodes of domestic violence

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              between Father and [M]other. Father is in [j]ail due
              to stabbing Mother; therefore, the criminal and
              dependency court had imposed a Stay Away Order
              against Father.

              At [a] Permanency Review Hearing, on January 31,
              2014 and May 2, 2014, DHS was ordered to do
              outreach to Father.      At [a] Permanency Review
              Hearing, on July 2, 2014, the trial court found that
              DHS reached out to Father at Huntington State
              Correctional Institution. Father’s minimum release
              date is August 2016 and his maximum release date
              is August 2020. The trial court also ordered Father
              to not have visits with [S.T.B.-R.], unless
              recommended by [S.T.B.-R.]’s therapist. Finally, the
              trial court found that Father’s compliance with the
              Permanency plan was not applicable.            At a
              Permanency Review Hearing, on October 3, 2014,
              the trial court found that Father remained
              incarcerated and that Wordsworth [Community
              Umbrella Agency (“CUA”)] also reached out to
              Father. The trial court ordered Wordsworth CUA to
              continue outreach with [Father’s] prison social
              worker to set up an interview with Father to inform
              him about his [Single Case Plan (“SCP”)] objectives
              and recommendations. Father’s visitations remained
              suspended.

Trial Court Opinion, 7/20/15, at 1-2 (citations to the record omitted).

       On March 4, 2015, DHS filed a petition to terminate Father’s parental

rights involuntarily.2     A termination hearing was held on March 26, 2015,

____________________________________________


2
  The order also stated “[t]he adoption of [S.T.B.-R.] may continue without
further notice to or consent of [Father.]” Trial Court Order, 3/26/15.
However, because Mother’s rights had not been terminated, the order did
not change S.T.B.-R.’s permanency goal. The trial court docket indicates
that S.T.B.-R’s permanency goal was changed to adoption on July 6, 2015,
following the termination of Mother’s rights.




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and the trial court entered its decree terminating Father’s parental rights

that same day.     Father timely filed a notice of appeal on April 24, 2015,

along with a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(a)(2)(i) and (b).

      On appeal, Father raises the following issues for our review.

            1. Did DHS make reasonable efforts to assist Father
            in being reunited with [S.T.B.-R.]?

            2. Did [DHS] sustain it’s [sic] burden that Father’s
            rights should be terminated?

            3. Did [DHS] sustain it’s [sic] burden regarding the
            requirements of 23 Pa.C.S.A. § 2511 (b)?

Father’s Brief at 5.

      We consider Father’s claims mindful of our well-settled standard of

review.

            The standard of review in termination of parental
            rights cases requires appellate courts to accept the
            findings of fact and credibility determinations of the
            trial court if they are supported by the record. If the
            factual findings are supported, appellate courts
            review to determine if the trial court made an error
            of law or abused its discretion. A decision may be
            reversed for an abuse of discretion only upon
            demonstration       of   manifest      unreasonableness,
            partiality, prejudice, bias, or ill-will. The trial court’s
            decision, however, should not be reversed merely
            because the record would support a different result.
            We have previously emphasized our deference to
            trial courts that often have first-hand observations of
            the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

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      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis.

            Initially, the focus is on the conduct of the parent.
            The party seeking termination must prove by clear
            and convincing evidence that the parent’s conduct
            satisfies the statutory grounds for termination
            delineated in Section 2511(a). Only if the court
            determines that the parent’s conduct warrants
            termination of his or her parental rights does the
            court engage in the second part of the analysis
            pursuant to Section 2511(b): determination of the
            needs and welfare of the child under the standard of
            best interests of the child. One major aspect of the
            needs and welfare analysis concerns the nature and
            status of the emotional bond between parent and
            child, with close attention paid to the effect on the
            child of permanently severing any such bond.

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

      In this case, the trial court terminated Father’s parental rights

pursuant to Sections 2511(a)(1), (2), and (b). We need only agree with the

trial court as to any one subsection of Section 2511(a), as well as Section

2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.

2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).            Here, we

analyze the court’s decision to terminate under Sections 2511(a)(2) and (b),

which provide as follows.

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

                                      …


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                 (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.

                                      …

           (b)     Other    considerations.--The       court     in
           terminating the rights of a parent shall give primary
           consideration to the developmental, physical and
           emotional needs and welfare of the child. The rights
           of a parent shall not be terminated solely on the
           basis of environmental factors such as inadequate
           housing, furnishings, income, clothing and medical
           care if found to be beyond the control of the parent.
           With respect to any petition filed pursuant to
           subsection (a)(1), (6) or (8), the court shall not
           consider any efforts by the parent to remedy the
           conditions described therein which are first initiated
           subsequent to the giving of notice of the filing of the
           petition.

23 Pa.C.S.A. § 2511(a)(2), (b).

     We first address whether the trial court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(a)(2).

           In order to terminate parental rights pursuant to 23
           Pa.C.S.A. § 2511(a)(2), the following three elements
           must be met: (1) repeated and continued incapacity,
           abuse, neglect or refusal; (2) such incapacity, abuse,
           neglect or refusal has caused the child to be without
           essential parental care, control or subsistence
           necessary for his physical or mental well-being; and
           (3) the causes of the incapacity, abuse, neglect or
           refusal cannot or will not be remedied.




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In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted).   “The grounds for termination due to parental incapacity that

cannot be remedied are not limited to affirmative misconduct.          To the

contrary, those grounds may include acts of refusal as well as incapacity to

perform parental duties.”     In re A.L.D., 797 A.2d 326, 337 (Pa. Super.

2002) (citations omitted).     “[A] parent’s incarceration is relevant to the

section (a)(2) analysis and, depending on the circumstances of the case, it

may be dispositive of a parent’s ability to provide the ‘essential parental

care, control or subsistence’ that the section contemplates.” In re A.D., 93

A.3d 888, 897 (Pa. Super. 2014) (discussing In re Adoption of S.P., 47

A.3d 817 (Pa. 2012)).

      Instantly, the trial court found that Father’s incarceration has rendered

him incapable of providing S.T.B.-R. with essential parental care, control,

and subsistence, and that Father will be unable to remedy the causes of his

parental incapacity.    Trial Court Opinion, 7/20/15, at 7-8.   The trial court

emphasized that Father has not made efforts to remain in contact with

S.T.B.-R., that Father has failed to complete any of his FSP or SCP

objectives, and that it is unclear when Father will be released from

incarceration. Id. at 5-8.

      Father argues that the trial court erred by terminating his parental

rights because DHS failed to provide reasonable efforts to assist him in being

reunited with S.T.B.-R. Father’s Brief at 17-22. Specifically, Father alleges


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that DHS failed to make sufficient efforts to have S.T.B.-R. placed in

therapy, so that she could begin visitation with Father. Id. at 19-22. Father

also contends that DHS failed to present clear and convincing evidence that

his parental rights should be terminated. Id. at 22-32. Father insists that

he was unable to maintain contact with S.T.B.-R. due to the stay away

order, but that he consistently inquired about S.T.B.-R.’s well-being. Id. at

25-26, 28, 31.    Father also asserts that the FSPs he received contained

objectives for Mother only, and that he was not advised of the objectives he

needed to complete until less than a month prior to the termination hearing.

Id. at 26-29, 31.    Father states that he completed two parenting-related

programs while incarcerated, and that he was prevented from completing

additional programs due to prison policy. Id. at 30-31.

      After a thorough review of the record, we conclude that the trial court

did not abuse its discretion by involuntarily terminating Father’s parental

rights to S.T.B.-R. Initially, we reject Father’s claim that his parental rights

should not have been terminated because DHS failed to provide him with

reasonable reunification efforts.    Our Supreme Court recently held that

reasonable reunification efforts are not necessary to support a decree

terminating parental rights pursuant to Section 2511(a)(2).           We have

discussed the Court’s decision as follows.

            In In re D.C.D., ___ Pa. ___, 105 A.3d 662 (2014),
            our Supreme Court analyzed the language of Section
            2511(a)(2) of the Adoption Act, as well as Section
            6351 of the Juvenile Act, 42 Pa.C.S.A. § 6351. The

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            Court reasoned that, while “reasonable efforts may
            be relevant to a court’s consideration of both the
            grounds for termination and the best interests of the
            child,” neither of these provisions, when read
            together or individually, requires reasonable efforts.
            The Court also concluded that reasonable efforts
            were not required to protect a parent’s constitutional
            right to the care, custody, and control of his or her
            child.

In re Adoption of C.J.P., 114 A.3d 1046, 1055 (Pa. Super. 2015) (some

citations omitted).

      Moreover, our review of the record confirms that DHS presented clear

and convincing evidence in support of its termination petition.      During the

termination hearing, DHS presented the testimony of CUA case manager,

Ms. Monique Cliett. Ms. Cliett explained that she was assigned to this case

in February of 2015. N.T., 3/26/15, at 4, 23. Ms. Cliett sent Father a letter

introducing herself as the new case manager, and spoke to Father on the

phone “several times.” Id. at 13, 25, 35. Ms. Cliett reported that an SCP

was prepared at the end of December 2014, and that Father’s SCP

objectives were to attend anger management and parenting programs. Id.

at 13, 32-33. Ms. Cliett noted that it is the policy of the CUA to send a copy

of the SCP to a child’s parents, and that she also spoke with Father about

these objectives.     Id. at 13-14, 32, 48.   Ms. Cliett recalled that Father

signed up for anger management classes in “the beginning of March” of

2015, but is on a waiting list.     Id. at 14-15, 25.     She did not have




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documentation to indicate that Father had signed up for parenting classes.3

Id. at 15, 26.

       Ms. Cliett further testified that Father has been incarcerated since

before S.T.B.-R. was placed in foster care, and that Father’s visits with

S.T.B.-R. were suspended pursuant to a court order. Id. at 11-12, 14, 25,

33-35. As a result, Ms. Cliett believed that Father has not had any contact

with S.T.B.-R. since the case began.           Id. at 20-21.   Father did not send

letters or gifts to S.T.B.-R., and he did not ask to send letters or gifts. Id.

at 20, 36. However, Father asks how S.T.B.-R. is doing.         Id. at 41.

       DHS also presented the testimony of DHS social worker, Gabriel Li.

Mr. Li explained that he worked on S.T.B.-R.’s case for approximately eight

months to a year, starting in January 2013. Id. at 54. Mr. Li agreed that

Father had no contact with S.T.B.-R. during that time, because Father was

incarcerated, and because Father’s visits with S.T.B.-R. had been suspended

by court order. Id. at 55. Father’s visits were suspended due to Father’s

acts of domestic violence against Mother, including a stabbing witnessed by
____________________________________________


3
  During cross-examination, Father’s counsel reviewed the documentation
Ms. Cliett received from Father concerning his attempts at enrolling in
programs while incarcerated. N.T., 3/26/15, at 42. According to Father’s
counsel, Father sent a request to prison authorities on March 8, 2015, asking
to be enrolled “in counseling and parenting classes and outpatient anger
management.” Id. at 44. On March 9, 2015, Father sent a similar request
to the prison’s psychological department asking to be enrolled in “‘mental
and behavioral health, outer stress inner calm group, grief and losses group,
positive mental attitude group, cage your rage anger control and recovery
group and beyond stress.’” Id.



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S.T.B.-R. Id. at 55, 63. Mr. Li noted that Father wrote to him to request

visitation and ask how S.T.B.-R. was doing. Id. at 55, 61. Father also sent

a birthday card for S.T.B.-R. Id. at 61-62. However, Father never indicated

to Mr. Li that he had completed or was attending any programs while

incarcerated. Id. at 59-60.

     Finally, Father testified on his own behalf.        Father explained that he

was incarcerated on August 8, 2012.         Id. at 70.   Father was convicted of

aggravated assault, and currently is serving a four to eight year sentence,

with a minimum release date in August 2016, and a maximum release date

in August 2020.   Id. at 75-76, 84.     Father recalled that he first received

documentation indicating that S.T.B.-R. had been removed from Mother’s

care in February 2013.        Id. at 70.      Father wrote to DHS and began

corresponding with Mr. Li.     Id. at 71.     According to Father, Mr. Li never

informed him that he should be taking classes while incarcerated.             Id.

Additionally, Father stated that the FSPs he received did not require him to

do anything, and referenced only Mother.        Id. at 71-72.     Father reported

that he completed a victim’s awareness program while incarcerated, as well

as programs entitled “Inside Out Dad” and “Reading to [Y]our Children.” Id.

at 72, 76. Father indicated that he has attempted to enroll in several other

programs, but “they don’t let you take them until you’re a certain amount of

time to your minimum. … [Y]ou don’t see those classes until you get to your

minimum. At least six months into your minimum.” Id. at 74-76.


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      Father admitted that he has not spoken to S.T.B.-R. since prior to his

incarceration. Id. at 82. Father stated that he attempted to write to S.T.B.-

R.’s foster mother on one occasion, but that he later received a letter from

“[s]omebody else” indicating that he should not.       Id. at 73-74.   Father

explained, “I wasn’t gonna keep written [sic] because I wasn’t really trying

to push and get in any type of trouble.” Id. at 74. Father acknowledged

that he has no job waiting for him upon his release, but claimed that he is

“doing a trade up here that’s going to help me with employment,” and that

he will be able to reside at his father’s home. Id. at 77-78.

      Accordingly, the record supports the trial court’s conclusion that

Father’s incarceration renders him incapable of providing S.T.B.-R. with

essential parental care, control, or subsistence necessary for S.T.B.-R.’s

physical or mental well-being. Moreover, Father cannot, or will not, remedy

his parental incapacity. Father has been incarcerated since August 8, 2012,

and it is not clear when Father will be released. If Father’s parental rights

are not terminated, S.T.B.-R. could be left to languish in foster care until

Father completes his maximum sentence in 2020, and possibly later. Even

assuming that Father is released upon completing his minimum sentence in

August 2016, the record demonstrates that Father’s incapacity will not be

remedied. Father has been either unwilling or unable to stay in contact with

S.T.B.-R. during his incarceration, and he has yet to complete the necessary

anger management and parenting programs.          Father has no employment


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waiting for him upon his release.      As such, Father will not be able to

immediately provide essential parental care, control, or subsistence.

      We next consider whether the trial court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(b). We have

discussed our analysis under Section 2511(b) as follows.

            Subsection 2511(b) focuses on whether termination
            of    parental    rights  would    best   serve   the
            developmental, physical, and emotional needs and
            welfare of the child. In In re C.M.S., 884 A.2d
            1284, 1287 (Pa. Super. 2005), this Court stated,
            “Intangibles such as love, comfort, security, and
            stability are involved in the inquiry into the needs
            and welfare of the child.” In addition, we instructed
            that the trial court must also discern the nature and
            status of the parent-child bond, with utmost
            attention to the effect on the child of permanently
            severing that bond. Id. However, in cases where
            there is no evidence of a bond between a parent and
            child, it is reasonable to infer that no bond exists.
            In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
            2008). Accordingly, the extent of the bond-effect
            analysis necessarily depends on the circumstances of
            the particular case. Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

      Here, the trial court found that there is no bond between Father and

S.T.B.-R., that S.T.B.-R. would not suffer irreparable harm if Father’s

parental rights are terminated, and that termination would be in S.T.B.-R.’s

best interest. Trial Court Opinion, 7/20/15, at 9. The trial court emphasized

that S.T.B.-R. has had no recent contact with Father, and that S.T.B.-R. is

thriving in the care of her foster mother, with whom she is bonded.      Id.

Father argues that the testimony presented by DHS during the termination

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hearing was insufficient to discern whether Father and S.T.B.-R. share a

bond, and whether S.T.B.-R. would be harmed if Father’s parental rights are

terminated. Father’s Brief at 32-34.

      We again discern no abuse of discretion.       Ms. Cliett testified that

S.T.B.-R. gets along well with her pre-adoptive foster mother, and that they

are bonded.    N.T., 3/26/15, at 21, 28-29.    S.T.B.-R. does not ask about

Father, and appears to be “fine” having no contact with him. Id. at 21, 28,

49-50.    Similarly, Mr. Li reported that he visited S.T.B.-R. on a monthly

basis, and that S.T.B.-R. never mentioned Father. Id. at 56. When Mr. Li

asked S.T.B.-R. about Father, she had little to say about him. Id. at 68-69.

Mr. Li opined that there is no bond between Father and S.T.B.-R. due to

Father’s incarceration and lack of contact, and that S.T.B.-R. would not

suffer irreparable harm if Father’s parental rights are terminated. Id. at 59-

60. He stated that S.T.B.-R. is thriving in foster care, and that S.T.B.-R. and

her pre-adoptive foster mother have an “extremely strong bond.” Id. at 59,

61, 63.

      Thus, the record confirms that S.T.B.-R. is bonded with her pre-

adoptive foster mother.   In contrast, S.T.B.-R. has not seen or spoken to

Father since prior to August 2012, and does not mention Father in

conversation. S.T.B.-R. appears to have no bond with Father, and she will

not suffer irreparable harm if Father’s parental rights are terminated. It is




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clear that S.T.B.-R.’s needs and welfare will be served by terminating

Father’s parental rights, and permitting S.T.B.-R. to be adopted.

      Based on the foregoing, we conclude that the trial court did not abuse

its discretion by involuntarily terminating Father’s parental rights to S.T.B.-

R.   Accordingly, we affirm the trial court’s March 26, 2015 decree

involuntarily terminating Father’s parental rights pursuant to 23 Pa.C.S.A.

§ 2511(a)(2) and (b).

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2016




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