J-S53001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Z. B .B., A MINOR            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
APPEAL OF: B. B., FATHER
                                                      No. 680 EDA 2017


              Appeal from the Order Entered January 20, 2017
            In the Court of Common Pleas of Philadelphia County
                            Family Court at No(s):
                          CP-51-AP-0001292-2016
                          CP-51-DP-0002242-2014


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

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 11, 2017

      B.B. (“Father”) appeals from the January 20, 2017 order that granted

the petition filed by the Philadelphia Department of Human Services (DHS)

to involuntarily terminate his parental rights to Z.B.B. (“Child”) (born in June

of 2007) and change the goal for Child to adoption. We affirm.

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

history of this case, as follows:

            On May 5, 2010, Child’s family became known to the
      Department of Human Services (“DHS”) when the Honorable
      Holly Ford granted [M.S.] (“Aunt”), maternal aunt of Child, sole
      legal custody of Child’s sibling. On July 16, 2014, the Honorable
      Holly Ford granted sole legal custody of Child to Aunt. Child’s
      parents D.S. (“Mother”) and Father were not involved with the
      care of Child at that time. Their whereabouts were unknown to
      DHS at that time. On October 3, 2014, the Honorable Jonathan
      Irvine adjudicated Child dependent and physical custody was
      granted to caretaker Aunt. On February 19, 2015, DHS obtained
      an Order for Protective Custody (“OPC”) for Child as a result of
      inappropriate discipline by caretaker Aunt. Mother and Father
      were not viable resources as each parent was minimally involved
      with the needs of Child. Thereafter, Child was sent to a foster
      home.
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             Child is autistic and receives services from Therapeutic
       Staff Support (“TSS”) and the Community Organization for
       Mental Health and Rehabilitation (“COMHAR”). A permanency
       review hearing was held on June 14, 2016, before the Honorable
       Jonathan Irvine and Father was ordered to go to the Achieving
       Reunification Center (“ARC”) for anger management and
       parenting classes. On September 1, 2016, a permanency review
       hearing was held before this Court and Father was ordered again
       to go to ARC for anger management and parenting classes.

              Throughout the history of this case, [the Community
       Umbrella Agency (“CUA”)] recommended Single Case Plan
       (“SCP”) objectives for Father. Father’s final SCP objectives were
       (1) to learn and understand Child’s autism; (2) to participate in
       supervised visits; (3) to complete anger management and
       parenting counseling; (4) to demonstrate appropriate parenting
       skills and (5) to meet the Child’s mental health and behavioral
       needs. Before meeting these objectives, Father was the alleged
       perpetrator of child abuse arising from an incident at the
       Father’s home during an unsupervised visit.         According to
       testimony, he was accused of chok[ing] the Child.

              On or about December 28, 2016, DHS filed the underlying
       Petition to Terminate Father’s Parental Rights to Child. On
       January 19, 2017, this Court terminated Father’s parental rights
       to Child pursuant to 23 Pa.C.S.[] § 2511(a)(1)(2)(5) and (8).
       The Court also ruled the termination of the Father’s parental
       rights was in the best interest of the Child pursuant to 23
       Pa.C.S.[] § 2511(b). The Court ruled that the Child’s goal be
       changed to adoption. Thereafter, Father filed a Notice of Appeal
       on February 21, 2017.

Trial Court Opinion (TCO), 4/6/17, at 2-4 (citations to the record omitted).

       Following its rendition of the facts and procedural history, quoted

above, the trial 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).   Specifically,    the   court   noted   “Father’s   ongoing

unwillingness to provide care or control for [] Child; to perform any parental


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duties and a failure to remedy the conditions that brought the Child into

care.”      Id. at 4.    The court also discussed the CUA representative’s

testimony, which it found credible, stating:

                At the hearing, the CUA Representative testified that
         throughout his life, Child had never lived with Father. The CUA
         Representative also testified that Child had autism which
         required extensive treatment and required intensive parental
         involvement. The CUA Representative testified that Father knew
         his SCP objectives. Father’s SCP objectives were to obtain
         appropriate housing[,] to comply with all visitation with Child,
         and to attend Child’s medical appointments.               The CUA
         Representative testified that over time additional SCP objectives
         were included, which were parenting classes and anger
         management classes. The CUA Representative testified that
         parenting classes and anger management classes were included
         as SCP objectives because Father inappropriately disciplined the
         Child by choking the Child and slamming the Child on a bed in
         May 2016. The CUA Representative testified that Father had not
         completed anger management classes. The CUA Representative
         testified that Father could not visit the Child from May to October
         2016 because Father did not provide CUA with a work schedule.

               Testimony indicated that Father had not met Child’s
         medical needs due to Father not attending medical
         appointments. The CUA Representative testified that the Child’s
         pre-adoptive foster parents were able to meet Child’s needs.
         The CUA Representative further testified that it would be in
         Child’s best interest to be adopted. The CUA Representative
         further testified that termination of Father’s parental rights
         would not harm Child and that termination of Father’s parental
         rights would be in the Child’s best interest

Id. at 5-6 (citations to the record omitted). Thus, the court found that DHS

had carried its burden of proof and that the termination would best serve

Child’s needs and welfare.

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




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       1. Did the trial court abuse its discretion by granting [DHS’]
       Petition to Change the Goal to Adoption pursuant to the Juvenile
       Act[,] 42 Pa.C.S.[] § 6301[,] because it did not view the …
       “totality of the circumstances?”

       2. Did the trial court abuse its discretion by finding that DHS
       proved by clear and convincing evidence that Father failed to
       rehabilitate  himself    pursuant    to    23    Pa.C.S.[]   [§]
       2511(a)(1)(2)(5)(8)?

       3. Did the trial court abuse its discretion by finding that DHS
       proved by clear and convincing evidence that it was in the best
       interests of [Child] to be adopted pursuant to 23 Pa.C.S.[] [§]
       2511(b)?

Father’s brief at 4.1

       We initially address Father’s second and third issues, which involve the

termination of his parental rights to Child.      We review such 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:

____________________________________________


1 In its opinion, the trial court did not address the change of goal to
adoption.



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      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. (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 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).

      We are guided further by the following: 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

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and convincing evidence that the asserted grounds for seeking the

termination of parental rights are valid. R.N.J., 985 A.2d at 276.

      With regard to Section 2511(b), we direct our analysis to the facts

relating to that section. This Court has explained that:

      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 763.

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

      In this case, as noted above, the trial court terminated Father’s

parental rights pursuant to sections 2511(a)(1), (2), (5), (8) 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). Although Father’s second issue

discusses all the subsections that the court determined were applicable, i.e.,

subsections (a)(1), (2), (5) and (8), we choose to analyze the court’s

decision to terminate under section 2511(a)(1) and (b), which provide:




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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:

           (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.

           ***

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

23 Pa.C.S. § 2511(a)(1), (b).

     In In re Z.P., 994 A.2d 1108 (Pa. Super. 2010), this Court provided

direction relating to what considerations need to be addressed when

reviewing a trial court’s decision to terminate parental rights under various

subsections of 2511(a). Specifically, relating to subsection (a)(1), the Z.P.

Court stated:

     A court may terminate parental rights under Section 2511(a)(1)
     where the parent demonstrates a settled purpose to relinquish
     parental claim to a child or fails to perform parental duties for at
     least the six months prior to the filing of the termination petition.
     In re C.S., [761 A.2d 1197 (Pa. Super. 2000)]. The court
     should consider the entire background of the case and not
     simply:


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            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 … parental rights, to determine if the evidence,
            in light of the totality of the circumstances, clearly
            warrants the involuntary termination.

      In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal
      denied, 582 Pa. 718, 872 A.2d 1200 (2005) (citing In re D.J.S.,
      737 A.2d 283 (Pa. Super. 1999)).

In re Z.P., 994 A.2d at 1117 (emphasis in original).

      Father’s argument relating to section 2511(a)(1) centers on his

assertion that the evidence did not support a finding that he had “exhibited a

‘settled purpose’ to abandon his [C]hild[]” or that he “failed to take

affirmative action to rectify the problems that brought the [C]hild into care.”

Father’s brief at 17. Specifically, Father contends that he visited with Child,

took “advantage of the limited services that were offered to him by CUA[,]”

that he appeared at all hearings, except for two, had completed a parenting

class, “complied with all the unsupervised visits[,]” and “attended two

therapeutic sessions with Child.”   Id. at 16.    Father also asserts that he

attended “anger management classes that were available to him prior to

ARC closing his case.” Id.

      DHS counters Father’s arguments by noting that Father did not

participate in the case until the June 15, 2015 permanency hearing, around

the time Child was eight years old.     Father’s visitation with Child at the

outset was supervised, but after December of 2015, the visits became


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unsupervised. However, in June of 2016, Father’s initial goals were modified

to include anger management counseling and parenting classes as a result of

Father’s inappropriate discipline of Child.       Following that incident, the

unsupervised visitation was changed to supervised, but then all visitation

was suspended until Child’s therapist recommended reinstatement. In fact,

after that time Father had no contact with Child or the CUA representative.

Moreover, because Father waited almost six months, until shortly before the

termination petition was filed in December of 2016, to begin the anger

management counseling, he was unable to complete that goal due to his

own failure to enroll in the program. Father also did not take part in Child’s

therapeutic services (only attending two sessions) or make any effort to

understand Child’s autism or to participate in any training regarding Child’s

condition.   Additionally, Father acknowledged that he lacked the ability to

care for and meet Child’s daily needs. DHS also points out that Father was

aware of his SCP objectives and was informed that he needed to complete

his objectives to avoid termination and facilitate reunification.

      Thus, based on its findings and credibility determinations, the court

concluded that Father refused or failed to perform his parental duties for a

period of at least six months prior to the filing of the petition to terminate

his parental rights. After our thorough review, we determine that the record

supports the trial court’s conclusion and it did not abuse its discretion in so

holding. Therefore, Father is not entitled to relief.


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      We next turn to Father’s issue in which he claims that insufficient

evidence established that termination would best serve Child’s needs and

welfare pursuant to 23 Pa.C.S. § 2511(b). Specifically, Father claims that

DHS failed to prove that “no bond [existed] between Father and Child and

that no irreparable harm would result from permanently servering the

relationship.” Father’s brief at 20. Surprisingly, Father cites testimony from

Mr. Jacques, the CUA case worker, who indicated that a bond existed

between Child and his current caregivers, that Child would be harmed if

removed from current caregivers, who understood how to meet Child’s

special needs, and that Child showed no signs of harm during the seven

month separation from Father after the May 2016 incident.

      To counter this testimony, Father contends that because the court

restricted contact between him and Child, the best interest analysis was

affected and essentially promoted the bond with the foster parents.

However, Father has failed to point to evidence in the record that would

support a finding of a bond between Father and Child in light of the fact that

he was not present for much of Child’s life and that he did not put forth the

necessary effort to become involved, when given the opportunity.       This is

especially so in light of Child’s autism and mental health issues. Again, we

conclude that the trial court did not abuse its discretion in that no evidence

supported a finding that severing any possible ties between Father and Child




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will have a negative effect on Child or that Child will suffer irreparable harm.

Father is not entitled to relief.

           We now turn to Father’s initial issue relating to his assertion that the

court abused its discretion in changing the placement goal to adoption when

it failed to view the totality of the circumstances of the case. To address the

goal change issue raised in this matter, we are guided by the following:

            In cases involving a court’s order changing the placement
      goal … to adoption, our standard of review is abuse of discretion.
      In re N.C., 909 A.2d 818, 822 (Pa. Super. 2006). To hold that
      the trial court abused its discretion, we must determine its
      judgment was “manifestly unreasonable,” that the court
      disregarded the law, or that its action was “a result of partiality,
      prejudice, bias or ill will.” Id. (quoting In re G.P.-R., 851 A.2d
      967, 973 (Pa. Super. 2004)). While this Court is bound by the
      facts determined in the trial court, we are not tied to the court’s
      inferences, deductions and conclusions; we have a “responsibility
      to ensure that the record represents a comprehensive inquiry
      and that the hearing judge has applied the appropriate legal
      principles to that record.” In re A.K., 906 A.2d 596, 599 (Pa.
      Super. 2006). Therefore, our scope of review is broad. Id.

In re S.B., 943 A.2d 973, 977 (Pa. Super. 2008). Additionally, this Court

has provided further considerations that apply in goal change situations,

stating:

      Because the focus is on the child’s best interests, a goal change
      to adoption might be appropriate, even when a parent
      substantially complies with a reunification plan. In re N.C.,
      supra 826-27 [(Pa. Super. 2006)]. Where a parent’s “skills,
      including [his or] her judgment with regard to the emotional
      well-being of her children, remain problematic[,]” a goal change
      to adoption might be appropriate, regardless of the parent’s
      compliance with a permanency plan. Id. at 825. The agency is
      not required to offer services indefinitely, where a parent is
      unable to properly apply the instruction provided. In re A.L.D.,
      797 A.2d 326, 340 (Pa. Super. 2002). See also In re S.B.,

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        supra at 981 (giving priority to child’s safety and stability,
        despite parent’s substantial compliance with permanency plan);
        In re A.P., 728 A.2d 375, 379 (Pa. Super. 1999), appeal denied,
        560 Pa. 693, 743 A.2d 912 (1999) (holding where, despite
        willingness, parent cannot meet “irreducible minimum parental
        responsibilities, the needs of the child must prevail over the
        rights of the parent”). Thus, even where the parent makes
        earnest efforts, the “court cannot and will not subordinate
        indefinitely a child’s need for permanence and stability to a
        parent’s claims of progress and hope for the future.” In re
        Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).

In re R.M.G., 997 A.2d 339, 347 (Pa. Super. 2010).

        Relating to the goal change issue, Father argues that the court should

have denied DHS’s request for a goal change because there was a “lack of

appropriate services offered to Father and because the services that were

offered were offered too late (11/16/16) for him to complete, i.e., two

month[s] prior to the termination of parental rights trial (1/19/17).”

Father’s brief at 12.   Father also contends that at the outset he was only

assigned three goals and that the other two goals were only added in June of

2016.       Furthermore,   Father   asserts   that   the   CUA   representative

acknowledged “that Father had complied with ‘some’ of the family plan goals

that were assigned in the beginning of the case.” Id. Additionally, the CUA

representative testified that because Child’s therapist did not approve

reinstatement of Father’s visits with Child after the abuse incident, visits

could not be rescheduled. With regard to the two added goals, i.e., anger

management and mental health, Father suggests that the fault lay with ARC

for failure to schedule the anger management sessions in a timely manner,



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thus, limiting his attendance to only two sessions before his parental rights

were terminated.         Father also claims that he could not attend the ARC

mental health program because at the time he did not have insurance.

Lastly, Father asserts that in light of Child’s autism and mental health issues,

which were a barrier to reunification, it was the CUA’s failure to provide the

proper   referral   to    programs   that   would   have   aided   Father   in   his

understanding of Child’s condition and that, as a result, the abuse incident

would never have occurred.

      In response, DHS points out that Father’s arguments alleging a lack of

reasonable efforts have been waived because during the proceedings before

the trial court Father never contested the court’s findings that DHS had

made reasonable efforts.        DHS also asserts that Father’s Rule 1925(b)

Statement of Errors Complained of on Appeal does not contain a claim of a

lack of reasonable efforts on the part of DHS. Moreover, DHS further claims

that Father has not identified where in the record this issue was preserved

for appellate review.         However, despite DHS’s waiver arguments, it

addresses Father’s goal change arguments, contending that they are

meritless.   Specifically, DHS identifies the fact that although Father was

directed to participate in Child’s medical and mental health appointments, he

only attended two sessions. Therefore, DHS claims that due to this failure,

Father was ineligible to receive training to aid in addressing Child’s needs.

In other words, it was not DHS’s failure to provide services, but rather it was


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Father’s choice not to take advantage of the services offered, a choice which

he cannot blame on others. DHS also identifies Father’s failure to follow up

on a referral for an anger management program, which was made an

objective in June of 2016.    Rather, he waited to enroll and again blames

others for only being able to attend two sessions, one in December of 2016

and the other in January of 2017, shortly before the court ordered the

termination of his parental rights.     In concluding its position on the goal

change to adoption issue, DHS states:

            The evidence established that [Father] failed to comply
      with the permanency plan to attain reunification with [Child] and
      lacked the capacity to ensure [Child’s] safety, stability and well-
      being.    [Child’s] significant mental health, educational, and
      behavioral needs require a caregiver who is knowledgeable
      about autism and an active participant in all of [Child’s] services.
      [Father] did not display an understanding or appreciation for
      [Child’s] behavioral and mental health needs. This was evident
      by [Father’s] non-compliance with the court’s order to attend all
      of [Child’s] treatment services, which were expansive, including
      weekly therapy through Elwyn, one-on-one in home services,
      psychiatric services, autism support services and trauma therapy
      through Hall Mercer.

DHS’s brief at 22 (citations to the record omitted).

      Having reviewed the extensive record in this case, we conclude that

the court’s change of goal to adoption was not an abuse of discretion, nor

manifestly unreasonable.     The facts discussed by the parties and the trial

court in connection with the termination determination support the goal

change to adoption.




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      Accordingly, we affirm the trial court’s order terminating Father’s

parental rights to Child and changing the goal for Child to adoption.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2017




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