J-S35030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: D.J.F.                    IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
APPEAL OF: M.J.F., FATHER
                                                   No. 3605 EDA 2015


            Appeal from the Decree Entered November 2, 2015
             In the Court of Common Pleas of Chester County
                  Orphans' Court at No(s): AD-2015-0044


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

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 06, 2016

     M.J.F. (Father) appeals from the decree entered by the Court of

Common Pleas of Chester County involuntarily terminating his parental

rights to his son, D.J.F. (Child), born in April of 2007.    We vacate and

remand for further proceedings.

     This matter began with the filing of a termination petition by L.G.S.

(Mother) and M.S. (Stepfather), seeking the termination of Father’s parental

rights to Child. A hearing was held on October 23, 2015, which resulted in

the decree now on appeal. The court’s decree contains the following factual

information upon which the court based its decision:

     While the court does not endorse all of the behaviors of the
     custodial parent [Mother] in this case, ultimately the respondent
     birth [F]ather only has himself to blame for the situation in
     which he finds himself. The court will not recount here the
     evidence concerning his long criminal career. He admits that he
     is an addict, and that he has “a disease.” That may be an
     explanation, but it does not give him a pass. [Father] was given
     an opportunity, not once but twice in 2014, to put his son ahead
     of his addictions. He was released from jail in January 2014 on
     the promise to remain drug–free. He was returned to prison a
     few months later having been violated as a result of continuing
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      drug abuse. During the time he was out, he did not see his son,
      blaming [M]other for refusing to transport the son to New Jersey
      for that purpose. He did speak once to his son on the telephone
      in April 2014. He did not try to do so again. [Father] was
      released from jail on or about November 3, 2014 with the
      proviso that any infraction would return him to custody as a
      violator. After only one and one-half weeks he was violated
      again for drug use and returned to state prison, where he
      remains.

      He had a decision to make. He made his decision.

      [Father] testified he knew that if he kept clean it would speed his
      path back to his son, but he did more drugs anyway. On
      another occasion in describing his attempts to reach his son by
      mail, he testified that while he sent drawings and cards to his
      son, he decided to “stay back” in deference to [M]other's wishes,
      although he knew that would “hinder communications.” That
      was not what was required of him. The summary of these facts
      is what directs the court to enter the final decree.

Trial Court Final Decree, 11/2/15, at 1 n.1.

      In his brief, Father explains that he and Mother were living together at

the time of Child’s birth until 2010.   He also discusses Child’s relationship

with Father’s parents, claiming that paternal grandparents have babysat

Child, have helped financially, and have taken Child on vacations. He then

discusses his drug issues and his guilty plea, which was entered on March

23, 2012, to charges of theft by unlawful taking and burglary for which he

received a ten-year sentence (New Jersey sentence).         Much of Father’s

statements center on his allegation about Mother’s attempting to thwart any

regular contact between him and Child. He also acknowledges that his last

contact with Child was in April of 2014.        Also, in lieu of face-to-face

communication with Child, Father asserts that he has sent letters and gifts



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to Child through paternal grandmother. However, he indicates that Mother

refused to share her address with him or paternal grandmother and he did

not know if the gifts or letters were received by Child. Father further claims

that he had no updated information about Child’s schooling or his activities.

Father also states that he is considered to be on the prison’s “privileged

unit” due to his good behavior and that he is attempting to enlist in

parenting programs offered to prisoners. Lastly, he discusses his testimony

about his eligibility for parole “on October 5, 2016[,]” and that his maximum

sentence runs until “late 2017, or early 2018.” Father’s brief at 11.1

       Following the parental termination hearing, the court entered the

termination decree pursuant to 23 Pa.C.S. § 2511(a)(1), (2) and (b). Father

filed a timely notice of appeal and a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). He now raises one

issue for our review:

       Did the trial court lack sufficient evidence, that is, clear and
       convincing evidence, and thereby abuse it’s [sic] discretion in
       terminating parental rights in this matter, considering Mother’s
       continued obstacles, thwarting of Father’s rights, testimony of
       continued attempts for contact, Child’s counsel/GAL position, and
       best interest and welfare of the Child?

____________________________________________


1
  In response to Father’s discussion about his ten-year New Jersey sentence,
in her brief, Mother counters that Father produced no evidence other than
his own testimony that he would be released at the latest in 2017 or early
2018. She notes that Father entered prison on January 30, 2011, and that if
he does not secure early release, he could possibly be incarcerated until
2021.



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Father’s brief at 5 (unnecessary capitalization omitted).

      We note that the various assertions of error contained in Father’s

issue, as stated in his brief, consolidate the errors Father listed in his concise

statement of errors. In response to Father’s statement, the court explained:

      [Father’s] asserted Error Nos. 2-5 all have the same theme - the
      court failed “in fully considering” the facts or positions set forth
      in those errors.       [Father] does not allege any partiality,
      prejudice, bias, ill-will or other alleged wrongdoing by the court
      which would support a claim of abuse of discretion. Nor does
      [Father] contend that the court reached determinations that
      were not supported by the record. Rather, the claim throughout
      the Concise Statement is that the court did not consider enough
      the various positions and arguments presented and/or advocated
      by [Father].         To the contrary, the court's [d]ecision
      demonstrates that it considered each of the positions submitted
      by the parties and all of the evidence. It thereafter reached an
      appropriate conclusion based upon that record.

Trial Court Opinion, 12/8/15, at 1-2.

      We review a decree 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)). The trial court is free to believe all, part,


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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).

      Termination of parental rights is governed by section 2511 of the

Adoption Act, which requires a bifurcated analysis.

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

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S. § 2511,

other citations omitted). The burden is upon the petitioner to prove by clear

and convincing evidence that the asserted statutory grounds for seeking the

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

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

addition to section 2511(b), in order to affirm the termination of parental


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

Herein, we review the decree pursuant to section 2511(a)(2) and (b), which

provide as follows.

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

         ....

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

         ....

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

23 Pa.C.S. § 2511(a)(2), (b).

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

must produce clear and convincing evidence regarding the following

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

(2) such incapacity, abuse, neglect, or refusal caused the child to be without

essential parental care, control, or subsistence necessary for his physical or

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mental well-being; and (3) the causes of the incapacity, abuse, neglect, or

refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825

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

rights under section 2511(a)(2), due to parental incapacity that cannot be

remedied, are not limited to affirmative misconduct; to the contrary, those

grounds may include acts of refusal as well as incapacity to perform parental

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

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

Court addressed the relevance of incarceration in termination decisions

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

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

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

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

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

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

828.

       As discussed above, Father’s main point is that Mother interferes and

thwarts his attempts to communicate with Child.      In other words, Father

claims that it is Mother’s fault that Father did not perform his parental

duties.   Clearly, the trial court recognized that Mother’s behavior was not

admirable. However, the court found that despite the chances Father had to

contact Child when he was intermittently released from jail, he did not take


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advantage of these opportunities.    Moreover, Father again and again was

found to have violated his probation/parole and as a consequence was

returned to prison.    Additionally, Father presented no documentation to

support his statements about his release date on the ten-year New Jersey

sentence.

      After reviewing the record in this case, we conclude that the evidence

supports the court’s decree terminating Father’s parental rights to Child in

that Father’s repeated and continued incapacity, neglect, or refusal due to

his incarceration has caused Child to be without essential parental care,

control, or subsistence necessary for his physical or mental well-being. In

addition, the causes of Father’s incapacity, neglect, or refusal cannot or will

not be remedied in that there is no substantiated evidence related to when

Father will be released from prison, and when he will be able to provide

essential parental care to Child.       There is only Father’s self-serving

testimony about his release date. Furthermore, Father’s attempts to blame

his lack of contact with Child on Mother appears not to have been believed

by the court or at the very least did not counter his lack of effort to perform

his parental duties. Therefore, we conclude that the court did not abuse its

discretion or err as a matter of law in arriving at its conclusion that Mother

carried her burden proving that Father’s conduct or lack thereof satisfies the

statutory grounds for termination in section 2511(a)(2).




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

analysis as follows:

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

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

       The only point the court made regarding section 2511(b) was that

Child “was indifferent to [Father], and little pain should result.” Trial Court

Final Decree at n.1. The court also referenced the fact that “[c]hildren are

young for a scant number of years” and that “[t]he court has an obligation

to see to the child’s healthy development quickly.” Id.2 Although these last

____________________________________________


2
  We also note that a guardian ad litem (GAL) was appointed by the court
and that Father references the GAL’s position that the court should deny
Mother’s petition. However, the record received by this Court contains no
documentation or testimony from the GAL, the court makes no reference to
the GAL’s opinion, and neither party provides any citation to the record in
regard to anything submitted by the GAL. The only item, which Father
attaches to his brief, is a copy of the GAL’s “Report to the Court.” However,
because the report is not a part of the certified record, we are unable to
consider it. Eichman v. McKeon, 824 A.2d 305, 316 (Pa. Super. 2003)
(Footnote Continued Next Page)


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two statements by the court are true, the court’s one sentence referencing

Child’s indifference to Father and that little pain should result is insufficient

to address the requirements of section 2511(b).             Therefore, we are

constrained to vacate the decree terminating Father’s parental rights and

remand the matter so that the parties may present further evidence about

emotional bonds, if any, between Father and Child and, particularly, what

effect a termination of Father’s parental rights would have on Child. See In

re Termination of C.W.S.M., 839 A.2d 398 (Pa. Super. 2003).

      Decree affirmed in part and vacated in part.        Case remanded with

instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2016




                       _______________________
(Footnote Continued)

(stating “[a]ny document which is not part of the official certified record is
considered to be non-existent, which deficiency may not be remedied by
inclusion in the reproduced record”).




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