J-S12013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: B.M.W., MINOR CHILD                       IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: L.A.W., FATHER

                                                     No. 2560 EDA 2015


                      Appeal from the Decree July 14, 2015
                 In the Court of Common Pleas of Bucks County
                       Orphans' Court at No(s): 2013-9130


BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*

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

        Appellant, L.A.W. (Father), appeals from the July 14, 2015 decree

involuntarily terminating his parental rights to his son, B.M.W., born in

March 2012.1 After careful review, we affirm.2

        We summarize the factual and procedural history as follows. In April

2012, shortly after B.M.W.’s birth, he was placed in the care and custody of

the Bucks County Children and Youth Social Services Agency (the Agency)

due to Mother’s illegal drug use during B.M.W.’s gestation. Orphans’ Court
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 B.M.W.’s mother, E.P. (Mother), voluntarily relinquished her parental rights
on July 7, 2015, and she is not a party to this appeal.
2
  The Guardian Ad Litem has filed a brief in support of the involuntary
termination decree.
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Opinion, 10/8/15, at 1; N.T., 9/2/14, at 9.            B.M.W. was adjudicated

dependent on July 25, 2012. Id.

         Father became incarcerated approximately three weeks after B.M.W.’s

birth.    Orphans’ Court Opinion, 10/8/15, at 5.       Father pleaded guilty to

crimes related to the possession of illegal drugs, and he was sentenced to a

term of incarceration of two to four years. Id. at 5, 6. Father’s maximum

date of incarceration is March 27, 2016. Id. at 5, n 3.

         On November 22, 2013, the Agency filed petitions for the involuntary

termination of Father’s and Mother’s3 parental rights pursuant to 23

Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). A hearing occurred on September

2, 2014, during which the following witnesses testified: Mother; Father; 4

Therese     Alimi,   the   Agency caseworker; and D.N.D.,        Father’s sister.

Importantly, the orphans’ court found that Ms. Alimi testified, “the Agency’s

major concern as to Father’s ability to care for B.M.W. is Father’s mental

health.” Id. at 7.

              Ms. Alimi testified that the Agency received mental
              health reports from various providers concerning
              Father; however, Father steadfastly maintained that
              he did not have mental health issues and he refused
              to participate in a mental health assessment or
____________________________________________


3
    Mother ultimately decided to voluntarily relinquish her parental rights.
4
  Father was on parole and residing in a halfway house during the subject
proceedings. Father testified that he had been residing in the halfway house
since May 12, 2014. N.T., 9/2/14, at 46-47; Orphans’ Court Opinion,
10/8/15, at 8.



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           mental health treatment. During a telephone call
           with Ms. Alimi’s supervisor on January 10, 2013,
           Father reported that the prison had prescribed Xanax
           for him but that since December 24, 2012, he had
           been flushing it down the toilet.

           Ms. Alimi testified … the Agency maintained the
           [Family Service Plan] Objective of medication for
           Father’s mental health because the “discharge psych
           evaluation” included that recommendation from the
           expert.   Ms. Alimi and her supervisor both told
           Father that he had the right to obtain a second
           opinion, since he disagreed with the conclusions of
           the mental health evaluations the Agency have
           received. Father never did so.

Orphans’ Court Opinion, 10/8/15, at 7 (citations to record omitted).

     In short, the orphans’ court found, “it was established that Father had

been consistently uncooperative with the Agency and unwilling to sign

releases sought by the Agency regarding his medical, employment and

housing histories and status.”    Id. at 9.    However, the orphans’ court

explained that, “based upon Father’s own adamant testimony about his

mental health and his desire to parent [B.M.W.],” it directed as follows by

decree dated September 5, 2014.

           1.    The Petition as to Father is held in abeyance
           for a period of four (4) months subsequent to the
           date of this Order, wherein Father may comply with
           the following conditions:

                 a.     Undergo a thorough mental health
                 evaluation to be performed by a Board–
                 certified mental health professional;

                 b.    Assuming     there   are   treatment
                 recommendations made by the mental health
                 professional, comply with any and all such

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                  treatment; and comply with all treatment
                  recommendations;

                  c.     Within ten (10) days of the date of this
                  Order, sign any and all releases, reasonably
                  requested by the Agency, allowing the Agency
                  to fully investigate Father’s medical history,
                  employment history and status; and ability to
                  provide suitable and stable housing for his
                  child;

                  d.    Continue with steady employment and
                  continue   efforts to   achieve  full time
                  employment status.

Orphans’ Court Order, 9/5/14, at ¶ 1(a–d) (hereinafter Interim Decree). In

addition, the orphans’ court directed, “[f]ollowing expiration of the aforesaid

four (4) month time period, the Agency may file for a hearing to complete

the evidentiary record ….” Id. at ¶ 2.

      A second termination hearing was held seven months later, on April

14, 2015, during which the Agency presented the testimony of its

caseworkers, Desiree Mullen and Taunya Ciambotti, and Father testified on

his own behalf. By decree dated July 7, 2015, and entered on July 14, 2015,

the orphans’ court terminated Father’s parental rights.

      On August 11, 2015, Father timely filed a notice of appeal and a

concise   statement   of   errors   complained   of   on   appeal   pursuant   to

Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). The orphans’ court

issued its opinion pursuant to Rule 1925(a) on October 8, 2015.

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




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            A. Was the [orphans’] court’s [d]ecree based on
               insufficient evidence and should [Father’s] parental
               rights not have been terminated[?]

            B. Was Father’s incarceration wrongfully used against
               [him] in making the determination to terminate his
               parental rights[?]

Father’s Brief at 4.

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

review.

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

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

omitted).

      Termination of parental rights is governed by Section 2511 of the

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

analysis.

              Initially, the focus is on the conduct of the parent.
              The party seeking termination must prove by clear
              and convincing evidence that the parent’s conduct
              satisfies the statutory grounds for termination

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

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

burden is upon the petitioner to prove by clear and convincing evidence that

the asserted statutory grounds for seeking the termination of parental rights

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

     This Court need only agree with any one subsection of Section

2511(a), along with 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), appeal denied, 863 A.2d 1141 (Pa. 2004). Instantly, we conclude

the orphans’ court properly terminated Father’s parental rights pursuant to

Section 2511(a)(2) and (b), which provide 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:

                                     …

                 (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

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                 for his physical or mental well-being and the
                 conditions and causes of the incapacity, abuse,
                 neglect or refusal cannot or will not be
                 remedied by the parent.

                                      …

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

23 Pa.C.S.A. § 2511(a)(2), (b).

     The   grounds   for   termination    of   parental   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). Further, this Court has

stated that a parent is required to make diligent efforts towards the

reasonably prompt assumption of full parental responsibilities.            Id.   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.


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       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., supra at

828.

       With respect to Section 2511(b), the requisite analysis is as follows.

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

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

       In his first issue on appeal, Father argues that the evidence was

insufficient to support the termination of his parental rights.      Specifically,

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Father asserts, “[s]ince his release to a halfway house he has continued to

maintain [a] relationship with [B.M.W.] while the Agency has done nothing

to promote reunification.” Father’s Brief at 8. Further, Father baldly asserts

that the orphans’ court held the Agency to a “lower standard” than the one

to which it held him because the Agency failed to provide releases for him to

sign within ten days of the Interim Decree.      See Orphans’ Court Order,

9/5/14, at ¶ 1(c). Nevertheless, Father asserts that he complied with the

Interim Decree by receiving a mental health evaluation at Penndell Mental

Health, and that he signed a release for the Agency to receive the

evaluation. Father’s Brief at 9. In his second issue, Father argues that the

orphans’ court abused its discretion in terminating his parental rights by

failing to apply the standard for incarcerated parents. Father’s Brief at 12.

Father argues that, while in prison, he maintained contact with B.M.W. Id.

In addition, Father argues that he has a plan for B.M.W. to live with D.N.D.,

his sister. Id.

      The orphans’ court supplied the following reasoning with respect to the

testimonial evidence presented on April 14, 2015.      Following the Interim

Decree, Taunya Ciambotti, the Agency caseworker, met with Father on

October 21, 2014, which was more than six weeks later.        Orphans’ Court

Opinion, 10/8/15, at 9. During the meeting, Ms. Ciambotti provided Father

with five releases, “including releases for Express Personnel Services, the

temporary employment agency Father claimed he was utilizing; the


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Pennsylvania Board of Probation and Parole; Norristown State Hospital; the

Bucks County Correctional Facility; and Self-Help Movement, the halfway

house where Father resided upon his discharge from incarceration.” Id. at

10 (citations omitted). Further, “Father left that meeting in October, 2014

with the original copy of each release, indicating to Ms. Ciambotti that he

wanted to speak with his attorney before he signed the releases.”      Id.

(citation omitted). The orphans’ court continued:

           Father testified that in voluntarily complying with a
           portion of [the orphan’s court’s I]nterim Decree … he
           presented at Penndel Mental Health and underwent
           an evaluation with Dr. Grossman, which was followed
           by one (1) therapy session. Neither the testimony of
           Dr. Grossman, in person or by telephone, nor any
           report authored by Dr. Grossman, was offered at the
           hearing. Father stated that on December 19, 2014,
           he signed an Agency release for his records
           maintained by Penndel Mental Health.

                 Father testified that in addition to the Penndel
           Mental Health release, he also provided a release to
           his parole officer. Despite seven (7) months of
           opportunity having elapsed between the two
           evidentiary hearing dates, Father claimed that on the
           Tuesday following the April 14, 2015 evidentiary
           hearing, he would be undergoing a drug and alcohol
           assessment.

                 As for the other unsigned [r]eleases sought by
           the Agency, Father testified that he wanted to confer
           with his attorney, but upon realizing he received the
           releases beyond ten (10) days from the date of th[e]
           [c]ourt’s [I]nterim Decree of September 5, 2014, “I
           figured why should I sign off after the 10 days.”
           Such was Father’s reasoning for his lack of
           cooperation, despite the fact that he signed the
           mental health release in December 2014, three (3)
           months after the … Interim Decree. Father testified

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              further that he never discussed the releases with his
              attorney because he “was too busy trying to find a
              job. Trying to find full-time employment so that
              everything would fall into place.” Father testified on
              April 14, 2015 that he was willing to sign all of the
              releases sought by the Agency.

Orphans’ Court Opinion, 10/8/15, at 10-11 (citations omitted).

      The orphans’ court stated that, “[a]s a whole, [it] did not find Father’s

testimony credible.”     Id. at 11.    Further, the orphans’ court found that

“Despite th[e orphans’ c]ourt’s efforts to afford Father additional time to do

so, Father remained unwilling or incapable of appreciating the need to meet

reasonable Agency Objectives.” Id. at 12. The testimony of Ms. Ciambotti

and Father supports the foregoing findings by the orphans’ court.

      Upon careful review, we conclude Father’s arguments on appeal have

no   merit.      Contrary   to   his   assertions,   the   testimonial   evidence

overwhelmingly supports the involuntary termination of Father’s parental

rights pursuant to Section 2511(a)(2). Indeed, Father’s continued neglect or

refusal to sign the releases and cooperate with the Agency’s objectives

regarding his mental health, employment, and housing has caused B.M.W.,

since birth, to be without essential parental care, control, or subsistence

necessary for his physical or mental well-being.      Therefore, we discern no

abuse of discretion by the orphans’ court in concluding that the causes of

Father’s incapacity, neglect, or refusal cannot or will not be remedied. See

T.S.M., supra.




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      With respect to Section 2511(b), our Supreme Court stated that,

“[c]ommon sense dictates that courts considering termination must also

consider whether the children are in a pre-adoptive home and whether they

have a bond with their foster parents.”     Id. at 268.   Moreover, the Court

directed that, in weighing the bond considerations pursuant to Section

2511(b), “courts must keep the ticking clock of childhood ever in mind.” Id.

at 269. The T.S.M. Court observed that, “[c]hildren are young for a scant

number of years, and we have an obligation to see to their healthy

development quickly.     When courts fail … the result, all too often, is

catastrophically maladjusted children.” Id.

      Instantly, the record includes no evidence of a parent-child bond

between Father and B.M.W.       Specifically, the orphans’ court found as

follows.

                 We found termination was warranted here.
           While we do not doubt that Father loves [B.M.W.],
           the record is essentially devoid of any credible
           testimony or evidence of a relationship between
           Father and [B.M.W.], the existence of which would
           result in a negative effect on [B.M.W.] should
           Father’s rights be terminated.

Orphan’s Court Opinion, 10/8/15, at 14. As such, it was reasonable for the

orphans’ court to conclude that no bond exists. See generally J.M., supra.

Further, the orphans’ court concluded that a bond exists between B.M.W.

and his foster mother.

           [B.M.W.] has been placed with his current foster
           family since March 22, 2013. [B.M.W.] is in a single-

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            parent foster home with another child who is 13
            years old. [B.M.W.] has a wonderful relationship
            with his foster mother, with whom he is affectionate
            and who he refers to as “momma.” [B.M.W.] refers
            to the older son as his brother. [B.M.W.] enjoys
            substantial interaction with the extended family and
            is treated as if he was born into that family.
            [B.M.W.] is on track developmentally at his daycare
            program, and is being observed in order to monitor
            his developmental milestones. Foster mother is an
            adoptive resource for [B.M.W.].

Orphans’ Court Opinion, 10/8/15, at 13.          The testimony of Ms. Alimi

supports the orphans’ court’s findings. Based on our review of the totality of

the record evidence, we conclude that involuntarily terminating Father’s

parental rights would best serve the developmental, physical, and emotional

needs and welfare of B.M.W. Therefore, we discern no abuse of discretion

by the orphans’ court with respect to Section 2511(b). See T.S.M., supra

at 267.

      Based on the foregoing, we conclude that the orphans’ court did not

abuse its discretion by involuntarily terminating Father’s parental rights to

B.M.W.    Accordingly, we affirm the orphans’ court’s July 14, 2015 decree

involuntarily terminating Father’s parental rights.

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2016




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