J-S10002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.L. & S.Q.L.,              IN THE SUPERIOR COURT OF
MINORS                                                PENNSYLVANIA

APPEAL OF: S.P.B., JR., FATHER
                                                    No. 2784 EDA 2016


                     Appeal from the Decree June 27, 2016
              In the Court of Common Pleas of Philadelphia County
                              Family Court at No(s):
                            CP-51-AP-0000532-2016
                            CP-51-AP-0000533-2016


BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED MARCH 13, 2017

       S.P.B., Jr., (“Father”) appeals from the June 27, 2016 decree that

granted the petition filed by the Philadelphia Department of Human Services

(“DHS”) to involuntarily terminate his parental rights to A.L. (born in

October 2007) (“Child 1”) and S.Q.L. (born in August 2009) (“Child 2”)

(collectively “Children”).1 We affirm.

       In its opinion, the trial court set forth the factual and procedural

history of this case, as follows:

       The family in this case has been known to DHS since 2010.
       Between 2010 and 2014, DHS received four General Protective
       Services (“GPS”) reports alleging problems in the home. All four
       reports were substantiated, and DHS offered services.         On
       February 6, 2014, DHS received another GPS report that the
       utilities in the home of M.L., (“Mother”) mother of the Children,
       were turned off. DHS visited the home and found it was filled
____________________________________________


1
  The parental rights of M.L. (“Mother”) were also terminated; however, she
is not a party to this appeal.
J-S10002-17


     with trash, smelled of marijuana and had no heat. The Children
     were truant. By family arrangement, DHS implemented a Safety
     Plan and the Children moved into the home of F.L., (“Cousin”)
     their maternal cousin. On March 25, 2014, Mother met with
     DHS and the Community Umbrella Agency (“CUA”) and stated
     she wanted the Children to return to her care. DHS obtained an
     Order of Protective Custody (“OPC”) and formally placed the
     Children with Cousin. The following day Cousin stated she could
     not care for the Children, so DHS placed them in other foster
     homes.     Father, who was Mother’s paramour at the time,
     contacted DHS and verbally[] claimed paternity of Child 1, Child
     2, and M.L., (“Child 3”) another of Mother’s children. Following
     an adjudicatory hearing on April 9, 2014, the court adjudicated
     the Children dependent and fully committed them to DHS
     custody. The court also ordered paternity tests for Father.
     Father never attended any permanency hearings held between
     2014 and 2016. He did not complete a paternity test. On June
     10, 2016[,] DHS filed petitions to terminate Father’s parental
     rights to the Children. The Children’s birth certificates had to be
     ordered by CUA, upon which it was discovered that Father, then
     Mother’s paramour, was listed as the father.

     The termination and goal change trial was held on June 27,
     2016. The trial covered the Children, Child 3 and two other
     siblings, and involved a number of fathers and putative fathers
     of those siblings.       Father was permitted to be heard by
     telephone, because he was incarcerated in a Federal
     penitentiary. The court began the case at exactly 1:30 P.M., at
     Father’s request.       Athena Dooley[, Esq.], Father’s court-
     appointed counsel, was present. When Father appeared by
     telephone he stated that he did not know what the trial was
     about. He stated that he would not participate if Dooley was
     [sic] there. The trial court colloquied Father, explaining to him
     that he had the right to participate or listen silently to the case.
     Father then hung up and did not participate any further. The
     court found that DHS had made reasonable efforts to notify
     Father, since he was allowed to be heard by telephone at the
     hearing in light of his incarceration. Dooley, as Father’s counsel,
     stipulated to DHS’s offered exhibits. The CUA social worker
     testified that Father’s objectives under the Single Case Plan
     (“SCP”) were to make himself known to CUA and to take a
     paternity test. Father never took a paternity test, and is only
     the putative father of the Children. Mother denies he is their
     father. The CUA social worker testified that Father had no

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       positive relationship with the Children, and there would be no
       irreparable harm if his parental rights were terminated. Father
       was non-compliant with his SCP objectives. Child 1 is placed
       with a maternal cousin in a pre-adoptive home. Child 2 is placed
       at Devereux Hospital because he ran from a prior foster home.
       Father is a registered sex offender, and had intended to adopt
       the Children and their siblings when he was released from
       prison. The CUA case manager testified that Father had claimed
       paternity of the Children in 2014. Father made himself known to
       CUA, and CUA sent letters to Father in prison by certified mail.
       These letters were not returned. These letters informed Father
       that he had been court-ordered to take a paternity test. Father
       never took a paternity test. The trial court terminated Father’s
       parental rights to the Children under 23 Pa.C.S.A. § 2511(a)(1),
       (2), (5), (8) and (b), and changed their permanency goal to
       adoption. The trial court held its decision on termination in
       abeyance regarding Child 3, since Child 3 did not wish to be
       adopted.1 [Attorney] Dooley was vacated as counsel for Father,
       and Neil Krum, Esq., was appointed.
              1
                The trial court also terminated the parental rights
              of several other fathers and putative fathers on June
              27, 2016. None of these individuals have appealed.

       On July 26, 2016, [A]ttorney Krum filed a Notice of Appeal for
       the Children and Child 3. His Statement of Matters filed on that
       date read simply, “T.B.D.” On August 26, 2016, [A]ttorney
       Krum filed a statement of matters which actually alleged errors.

Trial Court Opinion (TCO), 9/21/16, at 1-3 (citations to the record and notes

of testimony omitted).2

       Initially, the trial court held that Father waived all issues he wished to

raise because Attorney Krum failed to file a timely statement of errors

____________________________________________


2
   By order of this Court, dated October 14, 2016, the portion of Father’s
appeal relating to Child 3 was removed as part of this appeal because the
trial court had not terminated Father’s rights to Child 3 in the June 27, 2016
order presently on appeal.



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complained of on appeal in this children’s fast track appeal as required by

Pa.R.A.P. 1925(a)(2)(i) (“The concise statement of errors complained of on

appeal shall be filed and served with the notice of appeal….”). Specifically,

the court recognized that a notice of appeal must be filed within 30 days of

the entry of a final order, which in this case occurred on June 27, 2016, and

that because the first statement (solely stating T.B.D.), filed on July 26,

2016, did not contain any errors that Father intended to challenge, no

grounds for appeal were preserved. Furthermore, the court determined that

the August 26, 2016 statement that contained claims of error was filed well

beyond the 30-day time limit and, therefore, should be dismissed. See also

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not

raised in accordance with the provisions of this paragraph (b)(4) are

waived.”). Despite its assertion that all issues had been waived, the court

proceeded to address “the substance of Father’s untimely and procedurally

unsound appeal.” TCO at 4.

      Specifically,   the   court   discussed   the   basis   for   its   decision   to

involuntarily terminate Father’s parental rights pursuant to 23 Pa.C.S. §

2511(a)(1), (2), (5), (8) and (b), setting forth facts gleaned from the

documentation and testimony presented at the June 27, 2016 hearing. The

court also addressed Father’s claim that he was denied due process of law.

Thus, the court suggested that its termination of Father’s parental rights was

proper and should be affirmed by this Court.




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      In his brief to this Court, Father raises the following issues for our

review:

      1. Did the court below err in ruling that Appellant/Father, S.B.,
      had been properly served, as required by statutes and court
      rules, and in denying Due Process to Appellant S.B., Father, as
      guaranteed by the Constitutions of the United States and of the
      Commonwealth of Pennsylvania?

      2. Did the court below err in finding that [DHS] had met its
      burden in proving grounds under 23 Pa.C.S.A. §§ 2511(a)(1),
      (2), (5) and (8), by “clear and convincing evidence”?

      [3]. Did the court below err in finding that DHS had met its
      burden to prove that termination would be in the Children’s best
      interests, under § 2511(b)?

Father’s brief at 4.

      Before addressing Father’s issues, we must comment on the trial

court’s determination that Father has waived them all because of a failure to

provide a timely Rule 1925(a)(2)(i) statement.       To determine whether

Father’s issues should be considered waived, we rely on the statement found

in In re Adoption of C.J.P., 114 A.3d 1046 (Pa. Super. 2009), wherein this

Court explained:

      Neither CYS nor Child’s guardian ad litem has objected or
      claimed any prejudice as a result of Mother’s failure to file a
      concise statement until ordered to do so by this Court. Thus, we
      have accepted Mother’s statement in reliance on our decision in
      In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) (holding
      that a mother’s failure to comply strictly with Pa.R.A.P.
      1925(a)(2)(i) did not warrant waiver of her claims, as there was
      no prejudice to any party). Cf. J.M.R. v. J.M., 1 A.3d 902, 906-
      07 (Pa. Super. 2010) (holding that a father had waived his
      claims on appeal after this Court order him to file a concise
      statement, and the father’s statement was untimely).


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J-S10002-17



Id. at 1049 n.4.       Thus, contrary to the waiver found by the trial, we

conclude that under the circumstances here, Father has not waived all of the

issues he has raised in his appeal.

        We now turn to Father’s first issue in which Father claims he was

denied due process because he was not served with notice and was not

afforded    the   opportunity   to    be   heard   at   the   June   27,   2016   goal

change/termination hearing.          Father begins his discussion by pointing out

that the Adoption Act requires ten days’ notice to him “by personal service

or by registered mail … or by such other means as the court may require.”

Father’s brief at 12 (quoting 23 Pa.C.S. § 2513(b)).           Moreover, he claims

that there is no evidence presented that he had been served with this notice

and that, therefore, the trial court erred by determining that reasonable

efforts had been made to serve him. As part of this argument, Father also

asserts that he was denied due process because he was denied his request

to change counsel and to prepare his case.

        In response to these assertions, the trial court stated in its opinion

that:

        Father also alleges that he was denied due process of law. Due
        process requires adequate notice, an opportunity to be heard,
        and the chance to defend oneself in an impartial tribunal having
        jurisdiction over the matter. In Re Adoption of J.N.F., 887 A.2d
        775, 781 (Pa. Super. 2005); see also S. Med. Supply Co. v.
        Myers, 804 A.2d 1252, 1259 (Pa. Super. 2002).                The
        fundamental requirement of due process is the opportunity to be
        heard at a meaningful time and in a meaningful manner.
        Mathews v. Eldridge, 424 U.S. 319, 333 (1976).



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     Father appeared at the goal change termination hearing by
     telephone. The trial began at a time specified by Father, for his
     convenience. The court found that Father had notice of the trial.
     The trial court colloquied Father, and explained the purpose of
     the trial. The trial court made it clear that he could be present
     and could either listen silently or testify himself. Father chose to
     hang up the phone and not participate. Father was afforded a
     meaningful opportunity to be heard at the most consequential
     time in the trial. He voluntarily refused after the trial court
     explained his options and the potential consequences. Father
     had court-appointed counsel since April 2014, the start of the
     case. Father’s counsel was present for the trial and cross-
     examined DHS’s witnesses. Father’s counsel also showed that
     she had diligently read the case materials, since she corrected a
     misstatement by the CUA social worker. In allowing Father to
     participate and allowing his counsel to question witnesses and
     introduce evidence, the trial court did not deny Father his
     constitutional due process rights.

TCO at 9.

     Unfortunately for Father, we are compelled to conclude that this issue

has been waived because he failed to object to the court’s determination

that DHS made reasonable efforts to serve him with notice of the goal

change/termination hearing. Claims not raised in the trial court “may not be

raised for the first time on appeal.” In re S.C.B., 990 A.2d 762, 767 (Pa.

Super. 2010).

     In order to preserve an issue for appellate review, a party must
     make a timely and specific objection at the appropriate stage of
     the proceedings before the trial court. Failure to timely object to
     a basic and fundamental error will result in waiver of that issue.
     On appeal the Superior Court will not consider a claim which was
     not called to the trial court's attention at a time when any error
     committed could have been corrected. In this jurisdiction … one
     must object to errors, improprieties or irregularities at the
     earliest possible stage of the adjudicatory process to afford the
     jurist hearing the case the first occasion to remedy the wrong
     and possibly avoid an unnecessary appeal to complain of the
     matter.

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Id. (quoting Thompson v. Thompson, 963 A.2d 474, 475-476 (Pa. Super.

2008)).

     Next, we turn to Father’s second and third issues in which he claims

that the court erred in concluding that DHS had met its burden of proving

grounds for termination under sections 2511(a) and (b).       We review an

order terminating parental rights in accordance with the following standard:

            When reviewing an appeal from a decree terminating
      parental rights, we are limited to determining whether the
      decision of the trial court is supported by competent evidence.
      Absent an abuse of discretion, an error of law, or insufficient
      evidentiary support for the trial court's decision, the decree
      must stand. Where a trial court has granted a petition to
      involuntarily terminate parental rights, this Court must accord
      the hearing judge's decision the same deference that we would
      give to a jury verdict. 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 R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879

A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:

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

Id. at 276 (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super.

2003)). The trial 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). If competent evidence supports the trial court’s findings, we




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will affirm even if the record could also support the opposite result. In re

Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, which requires a bifurcated analysis.

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating
      parental rights. 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) (citing 23 Pa.C.S. § 2511,

other citations omitted). 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. R.N.J., 985 A.2d at 276.

      This Court must agree with only one subsection of 2511(a), in addition

to section 2511(b), in order to affirm the termination of parental rights. See

In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Herein, we

review the decree pursuant to section 2511(a)(2) and (b), which provide as

follows.




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

         ...

         (2) The repeated and continued incapacity, abuse,
         neglect or refusal of the parent has caused the child to be
         without essential parental care, control or subsistence
         necessary for his physical or mental well-being and the
         conditions and causes of the incapacity, abuse, neglect or
         refusal cannot or will not be remedied by the parent.

         ...

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

23 Pa.C.S. § 2511(a)(2), (b).

      To satisfy the requirements of section 2511(a)(2), the moving party

must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect, or refusal;

(2) such incapacity, abuse, neglect, or refusal 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. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental

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rights under section 2511(a)(2), 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).

       In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme

Court addressed the relevance of incarceration in termination decisions

under section 2511(a)(2).      The S.P. Court held that “incarceration is a

factor, and indeed can be a determinative factor, in a court’s conclusion that

grounds for termination exist under § 2511(a)(2) where the repeated and

continued incapacity of a parent due to incarceration has caused the child to

be without essential parental care, control or subsistence and that the

causes of the incapacity cannot or will not be remedied.” S.P., 47 A.3d at

828.

       With respect to section 2511(b), this Court has explained the requisite

analysis 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


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      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).

      The trial court in discussing section 2511(a)(2), stated:

      The Children have been in care since April 9, 2014. Father
      contacted CUA in 2014 and claimed paternity of the Children.
      CUA then notified Father by certified mail that the court had
      ordered him to take a paternity test. Father had requested the
      paternity test. Father never took a paternity test. The court
      heard no evidence that Father had ever provided any parental
      care for the Children. Father has known about the court-ordered
      paternity test since 2014, but has not complied. Father would
      not even participate in the termination trial. Father is also still
      incarcerated at the Allenwood Federal Penitentiary. The Children
      need permanency, which Father cannot provide. Father has
      demonstrated that he is unwilling to remedy the causes of his
      incapacity to parent in order to provide the Children with
      essential parental care, control or subsistence necessary for their
      physical and mental well-being.

TCO at 6 (citations to the record omitted).

      The thrust of Father’s argument, relating to section 2511(a)(2), is that

the trial court’s conclusions are not “logically drawn from the evidence

presented.” Father’s brief at 25. He also contends that the court did not

analyze how the evidence supported the court’s conclusion that “Father is

unable to remedy the causes of his incapacity” and that that conclusion is

“not supported by ‘clear and convincing evidence.’” Id. Those allegations

are the extent of Father’s argument, which we conclude is insufficient to

convince this Court that the trial court erred in ordering the termination of

Father’s parental rights.   Simply stated, Father was required “to make

himself known to CUA and to take a paternity test.”          TCO at 2.      The


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testimony revealed that Father was ordered multiple times to take a

paternity test, which he did not do, and that outreach was extended to

Father and that he never replied. See N.T., 6/27/16, at 39. Testimony also

revealed that Father’s level of compliance was “none” and that no

irreparable harm would befall the Children if Father’s parental rights were

terminated.   Id. at 40. There is no contrary evidence that would support

Father’s position countering DHS’s evidence.

     As for the section 2511(b) analysis, the trial court explained its

reasoning by stating that:

     The CUA social worker testified unequivocally that Father and the
     Children have no positive relationship.      There would be no
     irreparable harm if Father’s rights were terminated.         When
     Father appeared by phone and expressed a desire not to
     participate, the trial court colloquied him, explaining that he
     might lose his parental rights if he did not participate. Father
     seemed unconcerned with his parental rights, and hung up the
     phone. The Children are placed in foster homes which provide
     them with safety and permanency. Child 2 is placed in a pre-
     adoptive kinship home. Termination of Father’s parental rights
     will free the Children for adoption, and is in their best interest.
     The trial court heard no evidence of any bond between Father
     and the Children. Consequently, the court did not abuse its
     discretion when it found that it was clearly and convincingly
     established that there was parental bond, and that termination
     of Father’s parental rights would not destroy an existing
     beneficial relationship.

TCO at 8-9 (citations to the record omitted). We agree. In particular, we

note that the record does not provide information about Father’s interaction

with the Children, if any, presently or in the past. Moreover, no information

relating to an end date for Father’s period of incarceration is provided.


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Therefore, based on the evidence presented and the relevant case law, we

discern no abuse of discretion by the court in concluding that terminating

Father’s parental rights “would best serve the developmental, physical, and

emotional needs and welfare” of the Children. 23 Pa.C.S. § 2511(b).

        Accordingly, we affirm the decree terminating Father’s parental rights

pursuant to 23 Pa.C.S. § 2511(a)(2) and (b).

        Decree affirmed.

        Judge Dubow did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2017




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