J-S55001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: O.A., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: O.A., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 1591 EDA 2018

                      Appeal from the Decree April 25, 2018
      In the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-AP-0000250-2018,
                            FID: 51-FN-340767-2009


BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                            FILED NOVEMBER 05, 2018

       O.A. (“Father”) appeals from the decree dated and entered April 25,

2018, granting the petition filed by the Philadelphia Department of Human

Services (“DHS” or the “Agency”) seeking to terminate involuntarily his

parental rights to his minor child, O.A., a male born in September of 2001,

(“Child”), with M.V. (“Mother”), pursuant to the Adoption Act, 23 Pa.C.S.

§ 2511(a)(1), (2), and (b).1 We affirm.




____________________________________________


1 In a separate decree dated and entered April 25, 2018, the trial court also
involuntarily terminated the parental rights of Mother and any putative father
to Child pursuant to section 2511(a)(1), (2), (5), and (b) of the Adoption Act.
Neither Mother nor any putative father is a party to this appeal, nor has either
individual filed a separate appeal.
J-S55001-18


       On March 28, 2018, the Agency filed petitions to terminate involuntarily

the parental rights of Father and Mother to Child. On April 25, 2018, the trial

court commenced an evidentiary hearing on the petitions. Mother’s counsel,

Attorney Harry Levin, was present, but Mother was not present.         Father’s

counsel, Attorney Jay Stillman, was present, but Father participated via

telephone from SCI - Retreat, where he was incarcerated. N.T., 4/25/18, at

10-13. Child was present and testified as to his preferred outcome. Attorney

Edward Louden represented Child as his legal counsel, and Attorney Nghi Vo,

represented Child as his guardian ad litem (“GAL”).2

       The Agency presented the testimony of Child; Lashay Hickenbottom, the

Northeast Treatment Center (“NET”) Community Umbrella Agency (“CUA”)



____________________________________________


2 In In re Adoption of L.B.M., ___ Pa. ___, 161 A.3d 172 (2017) (plurality),
our Supreme Court held that 23 Pa.C.S. § 2313(a) requires that counsel be
appointed to represent the legal interests of any child involved in a contested
involuntary termination proceeding. The Court defined a child’s legal interest
as synonymous with his or her preferred outcome. In In re T.S., 2018 Pa.
LEXIS 4374 (filed August 22, 2018), ___ Pa. ___ ,___ A.3d ____ (2018), the
Supreme Court held that the trial court did not err in allowing the children’s
GAL to act as their sole representative during the termination proceeding
because, at two and three years old, they were incapable of expressing their
preferred outcome. The Court explained, “if the preferred outcome of the
child is incapable of ascertainment because the child is very young and
pre-verbal, there can be no conflict between the child’s legal interests and his
or her best interests; as such, the mandate of Section 2313(a) of the Adoption
Act that counsel be appointed ‘to represent the child,’ 23 Pa.C.S. § 2313(a),
is satisfied where the court has appointed an attorney-[GAL] who represents
the child’s best interests during such proceedings.” Id. at ___, 2018 Pa.
LEXIS 4374 at *27-28. Here, Child had both a legal counsel and a GAL, and
his preferred outcome is part of the record, so the mandates of L.B.M. and
T.S. are satisfied as to ascertainment of the child’s preferred outcome.

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case manager; C.I., Child’s foster mother (“Foster Mother”); F.I., Child’s foster

father, (“Foster Father”) (collectively, “Foster Parents”); Sharena Gatling, a

caseworker from Community Behavioral Health assigned to the family; and

Nick Valotta, the Court-Appointed Special Advocate (“CASA”) for Child.

      DHS first presented the testimony of Child. Child, who was sixteen years

old at the time of the hearing, testified that he was living with Foster Parents,

that he loved living with them, and that he was happy. Id. at 10, 15, 17.

Child testified that Foster Parents had been neighbors of his family. Id. at 15.

Child testified that he had not seen his parents in the fifteen months preceding

the hearing while he was living with Foster Parents, nor had he wished to see

either parent. Id. at 16. Child stated that Foster Father takes him to his

medical appointments, that Foster Mother helps him with his homework, and

that both Foster Parents attend teacher conferences with him. Id. He also

stated that, if he woke up in the middle of the night and was having a bad

dream, he would want Foster Mother to comfort him. Id. at 16-17. Child

testified that he desired to have the parental rights of Father and Mother

terminated so that Foster Parents could adopt him. Id. at 17. Child stated

that Foster Parents have a stable family and he feels safe with them.        Id.

They support him emotionally and financially. Id. Child loves them and wants

to be with them, and he does not want a relationship with Father or Mother.

Id.

      On the record, Child testified, when questioned, as follows:


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            CHILD: My dad and mom has [sic] a drug and alcohol
     addiction. My dad – me and my dad never really had a connection
     or, like, a father and dad [sic] relationship. He’s always been in
     and out of jail.

           The only person I did live with was my mom, and she had a
     drug and alcohol problem and she wasn’t there for me. She would
     verbally abuse me and physically abuse me throughout my, like,
     school.

          When I needed help, I would go to my best friend’s family’s
     house because I knew that I could trust them. I knew I could
     have came [sic] to them for everything.

           Like, if I needed help with school, if I needed money, they
     would have gave [sic] it to me. Like, if I needed help because --
     a situation on New Year’s Eve where she choked me and she
     kicked me out. I went to them.

          So, I just feel like living with them would be the best
     opportunity for me, for my future and present, and I just don’t
     want (unintelligible).

           MS. HOLLAND: Okay. When you said your best friend’s
     family, is that the [Foster Parents?]

           CHILD: Yes.

           MS. HOLLAND: -- family that you’re referring to?

           CHILD: [Foster] family.

           MS. HOLLAND: What are some of the things that you want
     for the future?

           CHILD: I want to finish high school. I want to go to college.

           MS. HOLLAND: Do you have any ideas of what you want to
     do in college?

           CHILD: Education, nursing.

           MS. HOLLAND: You want to be a teacher?


                                     -4-
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          CHILD: Yes.

           MS. HOLLAND: That’s great. Is there anything else that you
     are having right now that we could help you with?

          CHILD: What do you mean?

          MS. HOLLAND: Like, is there anything that you need in their
     home that you’re not getting at this moment?

          CHILD: No, I could save (ph) everything I need.

          MS. HOLLAND: You have everything you need?

          CHILD: Yes.

          MS. HOLLAND: Well, you’re very brave, and we appreciate
     you. I have—

          CHILD: Thank you.

          MS. HOLLAND: No further questions.

          THE COURT: Anything, Mr. Vo?

          MR. VO: No, I have no questions.

          THE COURT: Mr. Stillman, anything for –

          MR. STILLMAN: Just briefly. Yeah, [Child], if your father –
     when he does get out of jail, would you have any problem seeing
     him or visiting with him?

          [CHILD] No, but I wouldn’t want to.

          MR. STILLMAN: No further questions.

          THE COURT: Anything, Mr. Levin?

          MR. LEVIN: No questions, Your Honor.

          MS. HOLLAND: I just want to get clarity. You said no, but
     what you then said was that you don’t want to. So, if your dad is


                                   -5-
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     released from jail, would you want to have a relationship with
     him?

          CHILD: I never had a relationship with him, so, why would
     I want to start one?

            MS. HOLLAND: Okay.

N.T., 4/25/1, at 16-20.

     DHS then questioned the CUA caseworker, Ms. Hickenbottom, who

testified that the family came into DHS services on January 1, 2017, on New

Year’s Day, when Child indicated that Mother had touched him inappropriately.

Id. at 22. At that time, DHS obtained an order of protective custody (“OPC”),

and Child has remained in care since that date. Id. DHS established single

case plans (“SCP”) for both parents throughout the lifetime of the case, and

both Father and Mother were invited to participate in the SCP meetings. Id.

at 22. With regard to Mother, Ms. Hickenbottom testified that it would be in

the best interest of Child to change Child’s permanency goal to adoption. Id.

at 24-25.

     Ms. Hickenbottom testified that Father has been incarcerated for the

majority of the case, if not the entire life of the case, and Father was aware

that Child was in DHS care. Id. at 25. When Father’s counsel objected to the

testimony that Father was aware that Child was in care, Ms. Hickenbottom

testified that Father was sent copies of the petition to adjudicate Child

dependent and the SCPs throughout the life of the case. Id.




                                    -6-
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      Counsel for DHS requested the court to take judicial notice that,

throughout the life of the case, DHS has made reasonable efforts, and the

court has always found reasonable efforts, to reunify Child with Father. Id.

at 27.   At the adjudicatory hearing, Father, who was then incarcerated at

SCI-Graterford, was represented by counsel. Id. Judge Fernandes found that

DHS had made reasonable efforts to make Father aware that Child was coming

into care, and that Father was aware of that fact. Id. The trial court overruled

the objection to Ms. Hickenbottom’s testimony that Father was aware that

Child was in care. Id. at 27-28.

      Ms. Hickenbottom testified that the SCP objectives for Father had

remained the same throughout the life of the case. Id. at 28. She testified

that Father’s objectives were to write letters and make phone calls, as allowed,

while in prison, per court order. Id. at 28-29. When released from jail, Father

was to follow the court order and present at the Clinical Evaluation Unit

(“CEU”) forthwith and schedule an assessment to evaluate his need for

treatment of dual diagnosis symptoms, to address concerns regarding possible

mental health issues and suspected substance abuse.           Id. at 29.    Ms.

Hickenbottom further testified that, per the court order, Father was to have

three random tests, and was to follow all recommendations of the CEU

evaluation. Id. Ms. Hickenbottom testified that Father has been incarcerated

throughout the life of this case. Id. Child has never asked to visit Father in

jail. Id. at 30. Ms. Hickenbottom testified that Father had not contacted DHS


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to find out how Child was doing in school or to ask about Child’s medical

appointments. Id. at 33. Ms. Hickenbottom also testified that, throughout

the life of this case, Father has not completed drug and alcohol treatment

while incarcerated and has not completed his parenting or employment

objectives. Id. at 33-34. DHS has sent SCPs to Father, and he was made

aware of his objectives. Id.

      Ms. Hickenbottom testified that Father was scheduled to be released

from incarceration as early as May of 2018, and that he had no appropriate

housing or employment. Id. at 34-35. Child reported to Ms. Hickenbottom

that Father planned to move back in with Mother upon his release, although

she does not wish to be involved in this case. Id. at 35, 40. Ms. Hickenbottom

testified that it was in Child’s best interest to terminate Father’s parental

rights, and that Child will not suffer any irreparable harm as a result. Id. at

36. Ms. Hickenbottom believed that there would be irreparable harm to Child

if Father’s parental rights were not terminated. Id. at 37. Ms. Hickenbottom

does not believe that there is a healthy paternal relationship between Child

and Father. Id. Father has not complied with his parenting objectives, and

has not achieved any of his objectives. Id. Ms. Hickenbottom last saw Child

in Foster Parents’ home on April 9, 2018, and she observed that Child was

safe and his basic needs were being met. Id. at 38. Child is in Foster Parents’

home through A Second Chance. Id. Child really loves Foster Parents’ home,

and Foster Parents are very supportive of him. Id. At the time of the hearing,


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Child attended tenth grade, and had very good grades. Id. at 38. The prior

caseworker referred Child to Achieving Independence Center (“AIC”) to assist

him in obtaining scholarships for college. Id. at 39.

      Ms. Hickenbottom believes that Child is bonded to Foster Parents. Id.

She testified that Foster Parents’ home is the best and safest home for him,

and Child can rely on Foster Parents and has positive interactions.     Id. at

39-40. Child’s best friend lives in Foster Parents’ home, and Ms. Hickenbottom

observed that Child is comfortable in Foster Parents’ home. Id. at 40. Child

had reported that he was unhappy in his parents’ home. Id. Child has a

relationship with his sister. Id. Ms. Hickenbottom’s only contact with Father

consisted of writing him a letter informing him of the termination hearing, and

exploring whether he was interested in voluntarily relinquishing his parental

rights to Child. Id. at 41.

      Father testified that, since learning Child was in the custody of the

Agency, he had written to Child and to Foster Parents numerous times to see

if he could call Child, but had not received any response. Id. at 43. Father

made no effort to contact the Agency. Id. at 44. Father received a package

from NET, and had been made aware of the Family Service Plan for Child. Id.

Father testified that, while in prison, he had completed the Alcohol and Other

Drug (“AOD”) program, which is an outpatient drug program, and he had

completed violence prevention training. Id. at 45. He was scheduled to be

released on parole on May 10, 2018, and was going to be employed and live


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in Reading, Pennsylvania, where he would live in a studio apartment where he

would serve as the maintenance man. Id. at 46-47.        Father did not wish to

give up Child for adoption, as he did not believe any parent should give up a

child unless the parent does not love the child. Id. at 48. Father testified

that he had custody of Child and his sister in the past, in 2006 or 2008, that

he fought to get Child “out of the system,” and that he turned the children

over to Mother when she was doing well. Id.

      Father acknowledged his lengthy criminal record, and testified that he

had been in prison, most recently, for six years. Id. at 49. Father stated

that, if he stays away from drugs and bad influences, and does not make bad

decisions, he would remain out of prison in the future, and focus on his parole.

Id.

      On cross-examination by the Agency, Father admitted that he had not

completed a parenting class, and that he had been in and out of jail for 30

years. Id. at 52. When he did regain custody of Child, he gave custody of

Child to Mother, because he thought she was doing well. Id.

      On cross-examination by the GAL, Father testified that he has no

intention of leaving Reading after he moves to Reading, and that he has no

need to go back to Philadelphia, because he “has nothing there.” Id. at 53.

      On April 25, 2018, the trial court entered the decrees involuntarily

terminating the parental rights of both Father and Mother to Child. On May




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25, 2018, Father timely filed a notice of appeal and concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

       In his brief on appeal, Father raises the following issues:

       1. Whether the [t]rial [c]ourt erred in [t]erminating [A]ppellant’s
       [p]arental [r]ights under 23 Pa.C.S.A. section 2511(a)(1), the
       evidence having been insufficient to establish Appellant had
       evidenced a settled purpose of relinquishing his parental rights
       claim, or having refused or failed to perform parental duties [?]

       2. Whether the the [sic] evidence was sufficient to establish that
       Appellant had refused or failed to perform parental duties, caused
       Child to be without essential parental care, that conditions having
       led to placement had continued to exist, or finally that any of [the]
       above could not have been remedied[?]

       3. Whether the [e]vidence was sufficient to establish that
       [t]ermination of [p]arental [r]ights would best serve the [n]eeds
       and [w]elfare of the [m]inor [c]hild, under 23 Pa.C.S.[A.] section
       2511(b)[?]

Father’s Brief at 5.3

       Father argues that there was insufficient evidence presented at the

termination hearing to show that the requirements of section 2511(a)(1) were

met by clear and convincing evidence.              Father asserts that, although

incarcerated, once he learned that Child had entered into placement, he made

efforts to connect with Child. Father’s Brief at 8. Accordingly, Father contends

that he did not have a settled purpose to relinquish his parental rights. With

regard to section 2511(a)(2), Father also argues that there was little to

demonstrate that he was lacking the ability to parent a 16-year-old.           Id.

____________________________________________


3While Father stated his issues somewhat differently in his concise statement,
we find them sufficiently preserved for this Court’s review.

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Father claims that he successfully completed a number of programs while in

prison, and that he had a residence and a full-time job lined up upon his

release from incarceration. Id. at 9. Father thus asserts that DHS failed to

meet its burden of proving that he was unable to provide care for Child.

     Regarding section 2511(b), Father contends that the termination of his

parental rights cannot be sustained where Child’s needs and welfare have not

been properly addressed. Id. Further, he asserts that section 2511(b) cannot

serve as an independent basis for the termination of his parental rights. Id.

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

adhere to the following standard:

     [A]ppellate courts must apply an abuse of discretion standard
     when considering a trial court’s determination of a petition for
     termination of parental rights. As in dependency cases, our
     standard of review requires an appellate court to accept the
     findings of fact and credibility determinations of the trial court if
     they are supported by the record. In re: R.J.T., 9 A.3d 1179,
     1190 (Pa. 2010). If the factual findings are supported, appellate
     courts review to determine if the trial court made an error of law
     or abused its discretion. Id.; R.I.S., [36 A.3d 567, 572 (Pa. 2011)
     (plurality opinion)]. As has been often stated, an abuse of
     discretion does not result merely because the reviewing court
     might have reached a different conclusion. Id.; see also Samuel
     Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011);
     Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003). Instead, a
     decision may be reversed for an abuse of discretion only upon
     demonstration      of    manifest   unreasonableness,     partiality,
     prejudice, bias, or ill-will. Id.

     As we discussed in R.J.T., there are clear reasons for applying an
     abuse of discretion standard of review in these cases. We
     observed that, unlike trial courts, appellate courts are not
     equipped to make the fact-specific determinations on a cold
     record, where the trial judges are observing the parties during the
     relevant hearing and often presiding over numerous other

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      hearings regarding the child and parents. R.J.T., 9 A.3d at 1190.
      Therefore, even where the facts could support an opposite result,
      as is often the case in dependency and termination cases, an
      appellate court must resist the urge to second guess the trial court
      and impose its own credibility determinations and judgment;
      instead we must defer to the trial judges so long as the factual
      findings are supported by the record and the court’s legal
      conclusions are not the result of an error of law or an abuse of
      discretion. In re Adoption of Atencio, 650 A.2d 1064, 1066
      (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

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

evidence that the asserted grounds for seeking the termination of parental

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

      Moreover, we have explained, “[t]he standard of clear and convincing

evidence is defined as testimony that is so ‘clear, direct, weighty and

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

hesitance, of the truth of the precise facts in issue.’” Id., quoting In re J.L.C.,

837 A.2d 1247, 1251 (Pa. Super. 2003).

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

of parental rights with regard to any one subsection of section 2511(a). See

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

consider section 2511(a)(1), (2) and (b). Section 2511 provides, in relevant

part, as follows:

      § 2511. Grounds for involuntary termination

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



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             (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.

                                     ***

       (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.

      To terminate parental rights pursuant to Section 2511(a)(1), the person

or agency seeking termination must demonstrate through clear and

convincing evidence that, for a period of at least six months prior to the filing

of the petition, the parent’s conduct demonstrates a settled purpose to

relinquish parental rights or that the parent has refused or failed to perform

parental duties. In Re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super.

2003).

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


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      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,

      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 N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).

      The Supreme Court set forth our inquiry under section 2511(a)(2) as

follows.

      As stated above, § 2511(a)(2) provides statutory grounds for
      termination of parental rights where it is demonstrated by clear
      and convincing evidence that “[t]he repeated and continued
      incapacity, abuse, neglect or refusal of the parent has caused the
      child to be without essential parental care, control or subsistence
      necessary for his physical or mental well-being and the conditions
      and causes of the incapacity, abuse, neglect or refusal cannot or
      will not be remedied by the parent.” . . .

      This Court has addressed incapacity sufficient for termination
      under § 2511(a)(2):

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




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

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

         This Court has long recognized that a parent is required to make diligent

efforts    towards    the   reasonably    prompt   assumption    of   full   parental

responsibilities.    In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).             A

parent’s vow to cooperate, after a long period of uncooperativeness regarding

the necessity or availability of services, may properly be rejected as untimely

or disingenuous. Id. at 340.

         Our Supreme Court has addressed the termination of parental rights of

incarcerated parents under section 2511(a)(2), stating:

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

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

         In Adoption of S.P., our Supreme Court reiterated the standard with

which a parent must comply in order to avoid a finding that he abandoned his

child.

         Applying [In re Adoption of McCray, [331 A.2d 652, 655 (Pa.
         1975)] the provision for termination of parental rights based upon
         abandonment, now codified as § 2511(a)(1), we noted that a
         parent “has an affirmative duty to love, protect and support his
         child and to make an effort to maintain communication and
         association with that child.” [McCray] at 655.
                                        * * *




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      Where the parent does not exercise reasonable firmness in
      declining to yield to obstacles, his other rights may be forfeited.

Adoption of S.P., 47 A.3d at 828, quoting In re: Adoption of McCray, 331

A.2d at 655) (footnotes and internal quotation marks omitted).          Also in

Adoption of S.P., our Supreme Court re-visited its decision in In re R.I.S.

and stated:

      [W]e now definitively hold that incarceration, while not a litmus
      test for termination, can be determinative of the question of
      whether a parent is incapable of providing “essential parental
      care, control or subsistence” and the length of the remaining
      confinement can be considered as highly relevant to whether “the
      conditions and causes of the incapacity, abuse, neglect or refusal
      cannot or will not be remedied by the parent,” sufficient to provide
      grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(2).
      See e.g. Adoption of J.J., 515 A.2d at 891 (“A parent who is
      incapable of performing parental duties is just as parentally unfit
      as one who refuses to perform the duties.”); [In re:] E.A.P., 944
      A.2d [79,] 85 [(Pa. Super. 2008)] (holding termination under
      § 2511(a)(2) supported by mother’s repeated incarcerations and
      failure to be present for child, which caused child to be without
      essential care and subsistence for most of her life and which
      cannot be remedied despite mother’s compliance with various
      prison programs). If a court finds grounds for termination under
      subsection (a)(2), a court must determine whether termination is
      in the best interests of the child, considering the developmental,
      physical, and emotional needs and welfare of the child pursuant
      to § 2511(b). In this regard, trial courts must carefully review the
      individual circumstances for every child to determine, inter alia,
      how a parent’s incarceration will factor into an assessment of the
      child’s best interest.

In re Adoption of S.P., 47 A.3d at 830–831.

      As the Supreme Court definitively ruled in Adoption of S.P., the trial

court may examine the effect of a parent’s incarceration in ruling on a

termination petition.



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        This Court has stated that the focus in terminating parental rights under

section 2511(a) is on the parent, but it is on the child pursuant to section

2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.

2008) (en banc). In reviewing the evidence in support of termination under

section 2511(b), our Supreme Court has stated as follows:

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

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

        When evaluating a parental bond, “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 1108, 1121 (Pa. Super. 2010) (internal

citations omitted). Although it is often wise to have a bonding evaluation and

make it part of the certified record, “[t]here are some instances . . . where

direct observation of the interaction between the parent and the child is not

necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d

753, 762 (Pa. Super. 2008).

        A parent’s abuse and neglect are likewise a relevant part of this analysis:


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      concluding a child has a beneficial bond with a parent simply
      because the child harbors affection for the parent is not only
      dangerous, it is logically unsound. If a child’s feelings were the
      dispositive factor in the bonding analysis, the analysis would be
      reduced to an exercise in semantics as it is the rare child who,
      after being subject to neglect and abuse, is able to sift through
      the emotional wreckage and completely disavow a parent . . . Nor
      are we of the opinion that the biological connection between [the
      parent] and the children is sufficient in of itself, or when
      considered in connection with a child’s feeling toward a parent, to
      establish a de facto beneficial bond exists. The psychological
      aspect of parenthood is more important in terms of the
      development of the child and [his or her] mental and emotional
      health than the coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and

quotation marks omitted). Thus, the court may emphasize the safety needs

of the child.   See In re K.Z.S., 946 A.2d at 763 (affirming involuntary

termination of parental rights, despite existence of some bond, where

placement with mother would be contrary to child’s best interests).           “[A]

parent’s basic constitutional right to the custody and rearing of . . . her child

is converted, upon the failure to fulfill . . . her parental duties, to the child’s

right to have proper parenting and fulfillment of [the child’s] potential in a

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

(Pa. Super. 2004) (internal citations omitted).

      On the record, the trial court stated as follows:

             THE COURT: So, with respect to this case, I am going to
      start by finding [Child] credible and the CUA worker credible - -
      completely credible. With respect to [F]ather, I am not going to
      find [F]ather completely credible.

             I will find [F]ather credible as to the programs he completed
      in prison, and I will find [F]ather credible as to his expressed love

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     for his son. I will not find [F]ather credible as to efforts he made
     to establish contact with his son.

           Specifically, as to [F]ather, I am going to terminate,
     pursuant to [§] 2511(a)(1) and (a)(2). I do not believe that the
     Department has met a burden of proof with respect to [§§] 2511
     (a)(5) and (a)(8).

           With respect to [§] 2511(a)(1), it indicates that the parent,
     by conduct continuing for a period of at least six months
     immediately preceding the filing of the petition[,] either has
     evidenced settled purpose of relinquishing parental control - -
     parental claim to a child or has refused or failed to perform
     parental duties.

           By [F]ather’s own testimony, not once did he reach out to
     CUA to attempt to maintain contact with his child. He indicated
     that he received documentation from CUA, but he did not reach
     out to CUA.

            I don’t find [F]ather credible as to sending cards to a sister
     to try to get it to her brother or anything of that sort. Father was
     provided information from CUA as to how he could get his child
     back and who he could work with to get his child back.

           With respect to [§] 2511(a)(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 parents.”

           I understand [F]ather’s counsel’s argument that [F]ather is
     scheduled to be released from prison shortly. However, DHS
     Exhibit B indicates that [F]ather has a long history of incarceration
     dating back to 1988, long before his son was even born.

            So [F]ather has been in and out of prison and that, in and
     of itself, has made him unable to parent this child or establish a
     real relationship with his child.

           And, so, the fact that [F]ather is going to be released from
     prison shortly does not do anything to allay any concerns that this


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     [c]ourt may have that [F]ather wouldn’t find himself incarcerated
     again very shortly.

           I also find it very telling, as the Department pointed out,
     that when asked what reasons he would have to be in Philadelphia,
     [F]ather couldn’t find one, despite the fact that his son is currently
     residing in Philadelphia and in Family Court, and, in fact, here
     today having a termination regarding that.

            So, I think [F]ather has demonstrated by his own testimony
     that he does not have a real relationship with his son, and[,] in
     fact, he is only usurping rights to a child that he has no
     relationship with.

           With respect to section 2511(b), whether there would be a
     father-child relationship, [F]ather testified himself that there’s no
     real relationship.     He’s been in and out of prison.             He
     acknowledged that.

           He’s made poor decisions throughout the life - - his life and
     his son’s life - - that[,] when he had the opportunity to keep his
     son, he gave his son back to [ ] [M]other[,] and his son
     subsequently ended up back in DHS care.

           And, in fact, he indicated that he wants - - he has not been
     there for this child. I quote - - [F]ather specifically said - - he
     acknowledged that he had not been there for his son.

           Father acknowledged that he learned that his son was in
     foster care last year sometime.

           Based on [Child’s] testimony, the child, he’s testified, and I
     find him completely credible, that he has no relationship with his
     father, that his father has been in and out of his life, due to
     [Father’s] being in and out of prison, and that he does not feel
     that he has a father-son relationship, and that he himself does not
     believe there would be any irreparable harm if his father’s rights
     were terminated.

           Above all of the testimony provided today, that is the most
     compelling testimony. That is the most compelling proof that
     there is not a parent-child relationship here, and, as such, I find
     that there would be no detrimental impact.


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             There is no father-son relationship. So, I am going to
       terminate Father’s parental rights pursuant to [§§] 2511(a)(1),
       (a)(2), and (b).

             MS. HOLLAND: Can I ask, Your Honor, just about (a)(5)
       specifically, just so I know what we had not met in (a)(5)?

            THE COURT: With respect to (a)(5), this child was not
       removed from [F]ather’s care. He was

              MS. HOLLAND: Okay.

             THE COURT: -- removed from [M]other’s care. He was only
       removed 11 months ago. Father was incarcerated at the time,
       and so, as such, he could not have been removed from his
       [f]ather’s care.

             And so, [§§] 2511(a)(5) [and] (a)(8) do[] not apply to
       [F]ather.

              MS. HOLLAND: Okay.

                                          ***

             As stated by [Child’s] attorney, Mr. Louden, he is 16 years
       old and very much able to make a decision of this magnitude.


N.T., 4/25/18, at 59-66.4

       After a careful review of the record, this Court finds the trial court’s

decision to terminate the parental rights of Father under sections 2511(a)(1),

(2), and (b) is supported by competent, clear and convincing evidence in the

record.    In re Adoption of S.P., 47 A.3d at 826-827.          The trial court
____________________________________________


4 The trial court did not write an opinion setting forth the facts, procedure,
and a discussion of this matter. Rather, the trial court filed a document
entitled “Trial Court’s Notice of Compliance with Rule of Appellate Procedure
1925(a),” in which it stated that it applied the facts to the law, set forth its
credibility determinations, and provided that the reasons for terminating
Father’s rights are set forth on the record at N.T., 4/25/18, at 59-66.

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appropriately considered Father’s incarceration in addressing the evidence

admitted to support the termination of his parental rights, and the fact that

Father has been in and out of incarceration for almost all of Child’s entire

sixteen-and-one half-year life. When Father did regain custody of Child from

DHS at a time when Father was not incarcerated, he gave custody of Child to

Mother.     The trial court also found that Father failed to maintain

communication with Child.      The trial court appropriately considered that

Child’s needs and welfare, as well as his safety needs, have never been met

by Father, but, rather, by Foster Parents. The trial court also appropriately

considered that Child, himself, stated that he has no bond with Father, nor

does he desire to have one, and that his preferred outcome is to be adopted

by Foster Parents. In re T.S.M., 71 A.3d at 267; In re K.Z.S., 946 A.2d at

763. Further, although Father claims he loves Child, this Court has held that

a parent’s love of his child, alone, does not preclude a termination. See In

re L.M., 923 A.2d 505, 512 (Pa. Super. 2007) (stating that a parent’s own

feelings of love and affection for a child, alone, will not preclude termination

of parental rights). It is well-settled that “we will not toll the well-being and

permanency of [a child] indefinitely.” In re Adoption of C.L.G., 956 A.2d at

1007, citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (noting that

a child’s life “simply cannot be put on hold in the hope that [a parent] will

summon the ability to handle the responsibilities of parenting.”).




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     Accordingly, we find no abuse of discretion in the trial court’s

termination of Father’s parental rights to Child pursuant to sections

2511(a)(1), (2) and (b).

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/18




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