J-S88001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: X.M., CHILD                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                       v.

APPEAL OF: L.F., FATHER
                                                      No. 1516 EDA 2016


                    Appeal from the Order of April 11, 2016
             In the Court of Common Pleas of Philadelphia County
             Domestic Relations at No(s): CP-51-AP-0000028-2016


BEFORE: OLSON, RANSOM AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON:                             FILED DECEMBER 16, 2016

       L.F. (Father), appeals from the order entered on April 11, 2016,

granting the petition filed by the Philadelphia Department of Human Services

(DHS) to involuntarily terminate Father’s parental rights to his dependent

child, X.M. (Child), a male child born in November 2014, pursuant to the

Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). 1          Upon

review, we affirm.

       The trial court set forth the facts and procedural history of this case as

follows:

           The family in this case became known to DHS on November
           9, 2014, the date of Child’s birth, when DHS received a
____________________________________________


1
  X.V.-M., Child’s mother (Mother), filed an appeal from the April 11, 2016
order terminating her parental rights to Child.        We affirmed in an
unpublished memorandum decision on October 12, 2016. See In the
Interest of X.A.M., 2016 WL 5946710 (Pa. Super. October 12, 2016).
Mother is not a party to the current appeal.




*Retired Senior Judge assigned to the Superior Court.
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         General Protective Services (GPS) report stating that
         (Mother) had tested positive for PCP, had been the victim of
         Father’s domestic violence and had a history of mental
         health problems. On November 10, 2014, Father visited
         Child at the hospital and informed the hospital staff that he
         would not be able to care for Child. On November 26,
         2014, Mother contacted her mother and asked her to care
         for Child. Mother’s mother took Child to an aunt’s home.[2]
         On November 28, 2014, DHS visited the aunt’s home and
         observed that the aunt did not have adequate food. The
         same day, DHS obtained an Order for Protective Custody
         (OPC) and placed Child in a [c]risis [n]ursery program.
         Child was adjudicated dependent on December 10, 2014. At
         a March 3, 2015[] permanency review[,] the [trial] court
         found aggravated circumstances as to Mother, since her
         parental rights to another child had been involuntarily
         terminated on June 9, 2014. The [trial] court ordered that
         DHS reach out to Father and that Father make himself
         known. Father never attended permanency review hearings
         or made himself available to DHS. DHS filed a petition to
         change Child’s permanency goal to adoption and
         involuntarily terminate Mother’s and Father’s parental rights
         on January 12, 2016.

         The goal change and termination trial was held over two
         days, January 28, 2016, and April 11, 2016. On January
         28, 2016, the [] case manager testified […] she had
         attempted to contact Father, but she did not know his
         address and [he] had no working telephone. The [] case
         manager eventually made contact, and informed Father of
         his bi-weekly scheduled visits with Child. Father attended
         one visit during the life of the case, on the day before the
         termination trial began. Father’s [] objectives were to
         remain in contact with [the case manager], complete
         domestic violence counseling and attend scheduled visits
         with Child.      The [] case manager discussed these
         objective[s] with Father when she got in contact with him in
         July 2015. Father was engaged with domestic violence
____________________________________________


2
   The trial court references an “aunt” in its opinions. However, neither the
trial court’s opinions nor the certified record specifies the aunt’s relationship
to Mother, Father, or Child.



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       counselling, but dropped out of contact [] between July
       2015 and January 2016.         Father contacted [the case
       manager] in January 2016 [to] ask for [assistance] to get to
       his domestic violence class, and did not request a visit with
       Child.   [The case manager] had to encourage him to
       schedule the visit. The [] case manager testified there was
       no bond between Child and Father [and] Child would not
       suffer any irreparable harm if Father’s rights were
       terminated. Child is currently placed with Foster Parents.
       The [] case manager testified that Child is bonded with the
       Foster Parents, who have a parent-child relationship with
       him and provide for all his needs. Child’s sister has been
       adopted by Foster Parents, and they seek to adopt Child as
       well. Child and his sister have a loving sibling relationship
       and are bonded with each other. Adoption by the Foster
       Parents would be in Child’s best interest. Father testified as
       of [sic] cross that he did not have the [] case manager’s
       contact information, and could only get in contact with her
       through his domestic violence counsellor.

                          *         *           *

       On April 11, 2016, the [] case manager testified that […]
       Mother and Father [were] visit[ing] Child together, and []
       made their monthly scheduled visits since January 28,
       2016, when the termination trial started. […] Father has
       only attended five visits since Child came into care.
       Mother’s and Father’s housing [had] not been assessed.
       The [] case manager rated Mother and Father fully
       compliant. Child is bonded to the Foster Parents, who have
       cared for him for sixteen months. Following argument, the
       [trial] court terminated Mother’s and Father’s parental
       rights to Child under 23 Pa.C.S.A. § 2511(a)(1), (2), (5),
       and (8) and (b), finding there would be no irreparable harm
       if Mother’s or Father’s rights were terminated. The [trial]
       court also thought it was in Child’s best interest to be
       adopted, and changed the permanency goal to adoption.




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Trial Court Opinion, 5/24/2016, at 1-4 (record citations omitted).         This

timely appeal followed.3

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

         1. Did the [trial] court [] err in finding that grounds for
            termination of parental rights had been proven by “clear
            and convincing evidence?”

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

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

         4. Did the [trial] court [] err in denying [d]ue [p]rocess and
            [e]qual [p]rotection of [l]aw to [Father,] as guaranteed
            by the Constitutions of the United States and of the
            Commonwealth of Pennsylvania?

Father’s Brief at 4.

____________________________________________


3
    Karen Deanna Williams, Esquire represented Father at the termination
proceeding. After termination, on April 20, 2016, the trial court appointed
Neil Krum, Esquire for “appeal purposes only.” However, on May 9, 2016,
Father filed a timely pro se notice of appeal and accompanying concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2). Father sent copies of the notice of appeal and Rule 1925(a)(2)
statement to what appears to be his counsel’s address and to Mother’s
counsel.    Father’s counsel did not file an amended Rule 1925(a)(2)
statement. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a),
treating Father’s appeal as a challenge to “the goal change and termination
of his parental rights under the Adoption Act sections 2511(a)(1), (2), (5),
(8) and (b).” Trial Court Opinion, 5/24/2016, at 4. Attorney Krum filed an
appellate brief on Father’s behalf.     Father’s pro se concise statement
included all issues raised and developed on appeal, except due process and
equal protection arguments as will be discussed.



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      Father’s first two issues are inter-related, so we will examine them

together.   Father claims the termination of his parental rights was not

proven by clear and convincing evidence. Id. at 11. He claims there is “a

lot of confusion” regarding “what kind of outreach was done by DHS[,]”

because there were contact problems with Father.       Id.   Father avers that

Child’s case manager found him fully compliant with his reunification

objectives, but the trial court erred when it opined compliance was possible

“only because his objectives were so minimal.”        Id. at 14.    He further

suggests “[t]here is no indication that there was any real concern that

Father’s housing might be determined to be inappropriate.” Id. at 15.

      Our standard of review regarding the termination of parental rights is

well-established:

        In cases involving termination of parental rights, our scope
        of review is broad. All of the evidence, as well as the trial
        court's factual and legal determinations, are to be
        considered. However, our standard of review is limited to
        determining whether the order of the trial court is supported
        by competent evidence, and whether the trial court gave
        adequate consideration to the effect of such a decree on the
        welfare of the child. We have always been deferential to
        the trial court as the fact finder, as the determiner of the
        credibility of witnesses, and as the sole and final arbiter of
        all conflicts in the evidence. Moreover, this Court will affirm
        a termination of parental rights if competent evidence
        supports the trial court's findings, even if the record could
        support an opposite result.

In re S.D.T., Jr., 934 A.2d 703, 705–706 (Pa. Super. 2007) (internal

citations omitted).




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        The termination of parental rights is controlled by the Adoption Act.4

In re Adoption of R.J.S., 901 A.2d 502, 507 (Pa. Super. 2006). The party

seeking termination of parental rights has the burden of proving, by clear

and convincing evidence, that sufficient grounds for termination exist. In re

T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citations and quotation omitted).

“The standard of clear and convincing evidence means testimony that is so

clear, direct, weighty, and convincing as to enable the trier of fact to come

to a clear conviction, without hesitation, of the truth of the precise facts in

issue.”   In re J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002) (quotation

omitted).

        This Court “need only agree with the [trial court’s] decision as to any

one subsection [of Section 2511(a)] in order to affirm the termination of

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

banc).    Accordingly, for the purpose of our review, we will focus on the

termination     of   Father’s       parental       rights   pursuant   to   23   Pa.C.S.A.

§ 2511(a)(8). The relevant statutory provisions state, in pertinent part:

          § 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:

                                *              *             *

____________________________________________


4
    23 Pa.C.S.A. §§ 2101–2910.



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        (8) The child has been removed from the care of the parent
        by the court or under a voluntary agreement with an
        agency, 12 months or more have elapsed from the date of
        removal or placement, the conditions which led to the
        removal or placement of the child continue to exist and
        termination of parental rights would best serve the needs
        and welfare of the child.

                            *        *           *
        (b) Other considerations.—[…]           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)(8) and (b).

     When considering a termination petition, the trial court must initially

focus on the conduct of the parent, and determine whether statutory

grounds for termination under Section 2511(a) are met.      In re Adoption

of R.J.S., 901 A.2d at 508. Subsection (a)(8) requires clear and convincing

proof “(1) that the child has been removed from the care of the parent for at

least twelve (12) months; (2) that the conditions which had led to the

removal or placement of the child still exist; and (3) that termination of

parental rights would best serve the needs and welfare of the child.” Id. at

511. In a Section 2511(a)(8) analysis, the focus is solely on whether the

conditions which led to the child’s initial placement continue to exist.

“Termination under Section 2511(a)(8) does not require the court to

evaluate a parent’s current willingness or ability to remedy the

conditions that initially caused placement or the availability or efficacy of




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Agency services.”    In re Z.P., 994 A.2d 1108, 1118 (Pa. Super. 2010)

(emphasis added) (citations omitted). This Court has explained:

        We recognize that the application of Section (a)(8) may
        seem harsh when the parent has begun to make progress
        toward resolving the problems that had led to removal of
        [the] children. … However, by allowing for termination when
        the conditions that led to removal of a child continue to
        exist after a year, the statute implicitly recognizes that a
        child’s life cannot be held in abeyance while a parent
        attempts to attain the maturity necessary to assume
        parenting responsibilities. 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. Indeed, we work under statutory and case law that
        contemplates only a short period of time, to wit eighteen
        (18) months, in which to complete the process of either
        reunification or adoption for a child who has been placed in
        foster care.

In re Adoption of R.J.S., 901 A.2d at 513 (emphasis in original) (citations

omitted).   “A parent is required to exert a sincere and genuine effort to

maintain a parent-child relationship; the parent must use all available

resources to preserve the parental relationship and must exercise reasonable

firmness in resisting obstacles placed in the path of maintaining the

parent-child relationship.”   In re C.M.S., 832 A.2d 457, 462 (Pa. Super.

2003) (internal quotation omitted).

      Furthermore, “we are instructed that we may not consider any effort

by the parent to remedy the conditions described in subsection[](a)(8) if

that remedy was initiated after the parent was given notice that the

termination petition had been filed.” In re Z.P., 994 A.2d at 1121 (citation

omitted); 23 Pa.C.S.A. § 2511(b).       Further, this evidentiary limitation


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applies to the entire termination analysis. Id. The trial court, however, may

consider post-petition efforts if the efforts were initiated before the filing of

the termination petition and continued after the petition date. Id.

      In this case, Child was removed from Father’s care and custody for

more than one year.     Child was placed in protective custody on November

28, 2014.     DHS filed its petition to terminate Father’s parental rights on

January 12, 2016.    Thus, the first requirement of Section 2511(a)(8) was

clearly satisfied.

      Next, we examine whether the conditions that led to the removal of

Child continue to exist. Here, the conditions that led to the Child’s removal

included, inter alia, Father’s domestic abuse of Mother and Father’s complete

lack of contact with Child. When the case manager was able to interact with

Father, seven months after removal, she told Father that his objectives were

to maintain regular contact with her, engage in scheduled visitation with

Child, and seek domestic violence counseling.      N.T., 1/28/2016, at 18-20.

Despite providing her contact information, Father did not maintain any

contact with Child’s case manager from their initial conversation on July 22,

2015 until the middle of January of 2016. Id. at 15-17, 19-20. During that

time, the case manager’s contact information remained the same.           Id. at

15. As of the first termination hearing, Father only had one visit with Child,

which took place the day before the January 28, 2016 hearing or on January

27, 2016. Id. at 16. Thereafter, Father had four additional visits with Child.


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N.T., 4/11/2016, at 6.    Father did not start domestic counseling until the

beginning of January of 2016. N.T., 1/28/2016, at 60. Again, the docket

reflects that DHS filed the petition to involuntarily terminate Father’s rights

on January 12, 2016.

      Based upon an examination of the foregoing, it is clear that Father did

not begin visitation until after he received notice of the termination petition

and, thus, the trial court could not consider any of those visitation efforts.

In re Z.P., supra.     Father simply did not exercise reasonable firmness in

resisting obstacles placed in the path of maintaining the parent-child

relationship. In re C.M.S., supra.     Child’s life cannot be held in abeyance

while Father attempts to attain the maturity necessary to assume parenting

responsibilities. In re Adoption of R.J.S., supra. Father was not involved

in Child’s life, which led to removal. Over a year had passed and Father only

visited Child under the threat of termination of his parental rights.     This

evidence was clear and convincing for termination under Section 2511(a)(8)

and, thus, we need not consider whether Father complied with his domestic

counseling objectives. The trial court determined the conditions that led to

Child’s removal remained, and the record supports the trial court’s

determination.

      Next, Father argues the trial court erred by terminating his parental

rights under 23 Pa.C.S.A. § 2511(b). Father’s Brief at 17-19.     He contends




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that there was no discussion about bonding or lack thereof between Father

and Child. Id. at 19.

      Section 2511(b) provides as follows:

        (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.
        […]

23 Pa.C.S.A. § 2511(b).

      In reviewing the evidence in support of termination under Section

2511(b), we consider whether the termination of parental rights would best

serve the developmental, physical and emotional needs and welfare of the

child. See In re C.M.S., 884 A.2d at 1286-1287. “Intangibles such as love,

comfort, security, and stability are involved in the inquiry into the needs and

welfare of the child.” Id. at 1287 (citation omitted). The court must also

discern the nature and status of the parent-child bond, with utmost attention

to the effect of permanently severing that bond with the child. See id. This

Court has observed that no bond worth preserving is formed between a child

and a natural parent where the child has been in foster care for most of the

child’s life, and the resulting bond is attenuated.   In re K.Z.S., 946 A.2d

753, 764 (Pa. Super. 2008).

      In this case, Child was 19 days old when removed from parental care.

Child has been in foster care most of his life, thus, the bond between Child

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and Father was attenuated.       The case manager testified that Child was

primarily bonded to his foster parents, Child was living with and bonded to

his older biological sister, and there would be no negative impact on Child if

Father’s bond was severed. N.T., 1/28/2016, at 22-26         We conclude there

was clear evidence that termination of Father’s parental rights would best

serve the developmental, physical and emotional needs and welfare of Child

pursuant to Section 2511(b).

      Finally, Father argues that parenting “implicate[s] fundamental rights

which are entitled to protection under the 14th Amendment of the United

States Constitution Due Process and Equal Protection Clauses, and the

Constitution of the Commonwealth of Pennsylvania.”        Father’s Brief at 19-

21. More specifically, Father relies upon the United States Supreme Court

decision in Stanley v. State of Illinois, 405 U.S. 645 (1972), a case out of

Illinois wherein “state law protected rights of parents, but excluded some

classes of parents, including unwed [f]athers.” Id. at 20.

      Initially, we find Father waived his constitutional contentions for failing

to raise them in his Rule 1925(a)(2) statement. “As this argument was not

raised in Father's [concise] statement, it is waived.” Yates v. Yates, 963

A.2d 535, 542 (Pa. Super. 2008); see also Pa.R.A.P. 1925(b)(4)(vii)

(“Issues not included in the [s]tatement and/or not raised in accordance

with the provisions of this paragraph (b)(4) are waived.”). Moreover, this

Court will not address issues not properly raised before the trial court. See


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Pa.R.A.P. 302(a) (stating that issues not raised in the trial court will be

deemed waived on appeal).         Additionally, although Father refers to due

process on appeal, he does not develop that aspect of the claim in his

appellate brief.    Thus, Father additionally waived this portion of his

argument for lack of development. See Pa.R.A.P. 2119 (requiring a properly

developed argument for each question presented including a discussion of

and citation to authorities in appellate brief).

      Even if we were to overlook issues surrounding waiver and improper

preservation and development of this claim, we would conclude that Father

is not entitled to relief because his argument is patently devoid of merit.

Father’s argument centers on a case discussing equal protection. “The

essence of the constitutional principle of equal protection under the law is

that like persons in like circumstances will be treated similarly.”        In re

Adoption of C.J.P., 114 A.3d 1046, 1057 (Pa. Super. 2015). Father simply

does not set forth how or why he was treated differently than other similarly

situated fathers facing termination of their parental rights. Regardless, this

Court has stated: “[A] parent’s basic constitutional right to the custody and

rearing of . . . [his] child is converted, upon the failure to fulfill . . . [his]

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).

“Parental rights are not preserved by waiting for a more suitable or


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convenient time to perform one's parental responsibilities while others

provide the child with his or her physical and emotional needs.” Id. at 855.

It is well-settled that courts may not toll the well-being and permanency of a

child indefinitely. In re C.L.G., 956 A.2d 999, 1007 (Pa. Super. 2008) (en

banc), 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.”). Thus,

Appellant’s fourth issue has been waived, and is otherwise without merit.

Accordingly, after a careful review, we affirm the order terminating Father’s

parental rights to Child on the basis of Section 2511(a)(8) and (b).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016




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