J-A05019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: G.M.T., A           :   IN THE SUPERIOR COURT OF
MINOR                                   :        PENNSYLVANIA
                                        :
                                        :
APPEAL OF: J.A.T., FATHER               :
                                        :
                                        :
                                        :
                                        :   No. 2603 EDA 2017

                Appeal from the Order Entered July 12, 2017
    In the Court of Common Pleas of Philadelphia County Family Court at
                      No(s): CP-51-AP-0000369-2017


BEFORE:      DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                          FILED MARCH 13, 2018

     J.A.T. (Father) appeals from the decree that involuntarily terminated

his parental rights to his daughter, G.M.T. (Child), pursuant to 23 Pa.C.S.A.

§ 2511(a)(1), (2) and (b) of the Adoption Act. For the reasons that follow,

we affirm.

     Father and A.S. (Mother) are the biological parents of Child, born in

May of 2013.     On May 21, 2015, the Philadelphia Department of Human

Services (DHS) received a report alleging that Child was exposed to

domestic violence and drug abuse in Mother’s care. DHS contacted Father,

who indicated that he was residing in a halfway house and acknowledged his




____________________________________
* Former Justice specially assigned to the Superior Court.
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inability to care for Child.1 Accordingly, DHS obtained an Order of Protective

Custody (OPC) for Child, and Child was placed in foster care through A

Second Chance.       Child remained in foster care pursuant to a shelter care

order entered on June 2, 2015. On June 30, 2015, following the filing of a

DHS petition, the trial court adjudicated Child dependent.

       On March 28, 2017, DHS filed a petition to involuntarily terminate

Father’s parental rights to Child.2        The trial court conducted a termination

hearing on July 12, 2017. At the hearing, DHS presented the testimony of

Tracey O’Donnell and Angienzka Feulner, the Community Umbrella Agency

(CUS) case managers assigned to Father’s case. Father testified on his own

behalf. At the conclusion of the hearing, the trial court orally delivered its

ruling terminating Father’s parental rights. The trial court entered its decree

on that same date.        On August 11, 2017, Father filed a timely notice of

appeal, along with a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court filed its opinion

on September 19, 2017.
____________________________________________


1 On December 19, 2014, Father was sentenced to 11½ to 23 months in
prison for receiving stolen property. Father was released in May 2015 and
ordered to serve five years of probation.

2 DHS’s termination petition sought to terminate the parental rights of both
Mother and Father.       However, a hearing on the petition to terminate
Mother’s parental rights was held separately from Father, and the outcome
of that hearing is not contained in the record. Mother is not a party to this
appeal, nor did she file a brief in connection with this appeal.




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       On appeal, Father raises the following issues for our review:3

       1. Whether the [t]rial [c]ourt erred by terminating the parental
          rights of [Father] under 23 Pa.C.S.A. § 2511(a)(1)?

       2. Whether the [t]rial [c]ourt erred by terminating the parental
          rights of [Father] under 23 Pa.C.S.A. § 2511(a)(2)?

       3. Whether the [t]rial [c]ourt erred by terminating the parental
          rights of [Father] under 23 Pa.C.S.A. §2511(a)(5)?

       4. Whether the [t]rial [c]ourt erred by terminating the parental
          rights of [Father] under 23 Pa.C.S.A. §2511(a)(8)?

       5. Whether the [t]rial [c]ourt erred by finding, under 23
          Pa.C.S.A. §2511(b), that termination of [Father’s] parental
          rights best serves the child’s developmental, physical and
          emotional needs and welfare?

Father’s Brief at 5 (trial court answers omitted).4

       We review an appeal from the termination of parental rights in

accordance with the following standard:

       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
____________________________________________


3Father framed his issues somewhat differently in his concise statement, but
we find them sufficiently preserved for our review.

4  Although DHS petitioned the trial court to terminate Father’s parental
rights pursuant to Section 2511(a)(1), (2), (5), (8) and (b), the record
reveals that the trial court only terminated Father’s parental rights pursuant
to subsections (1), (2) and (b). Accordingly, we need not address Father’s
third and fourth issues, which challenge the termination of his parental
rights pursuant to subsections (5) and (8).



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      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 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).

      “In termination cases, the burden is upon [the petitioner] to prove by

clear and convincing evidence that its asserted grounds for seeking the

termination of parental rights are valid.” In re R.N.J., 985 A.2d 273, 276

(Pa. Super. 2009).    We have explained that “[t]he standard of clear and

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


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and convincing as to enable the trier of fact to come to a clear conviction,

without hesitance, of the truth of the precise facts in issue.’” Id. (quoting

In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

      The trial court terminated Father’s parental rights pursuant to Section

2511(a)(1), (2) and (b). This Court need only agree with the trial court’s

decision as to any one subsection of Section 2511(a), as well as Section

2511(b), to affirm the termination. See In re B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004) (en banc). Accordingly, we focus our analysis on Section

2511(a)(2) and (b), which provides 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.

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23 Pa.C.S.A. § 2511(a)(2), (b).

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

must produce clear and convincing evidence that the following three

conditions are met: (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 mental well-being; and (3) the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied.       In re Adoption of

M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003); 23 Pa.C.S.A. § 2511(a)(2).

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 granting DHS’s petition for involuntary termination, the trial court

made the following determination:

      This [c]ourt heard credible evidence regarding Father’s lack of
      capacity to perform parental duties, and [he] is incapable of
      providing essential care which is necessary for the Child’s
      physical and mental well-being. Both [c]ase [m]anagers . . .
      testified Father repeated [sic] failed to comply with the
      supervised visits with the Child, making excuses that he worked
      a lot of overtime. They both stated Father also made constant
      references to the positive drug screens being tainted and
      alleging he was allergic to cotton and could not submit to
      swabbing for drug detection. Father failed to present current,
      valid prescriptions for his alleged prescribed use of drugs, and


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        also failed to produce evidence to corroborate his employment,
        and housing.

Trial Court Opinion, 9/19/17, at 19-20.

        The certified record reveals that Father’s actions and inaction have

resulted in Child being without essential parental care, and Father has failed

to remedy the conditions that caused the incapacity within a reasonable

time.    DHS established the following objectives for Father: obtain suitable

housing; participate in a drug and alcohol outpatient program; attend

parenting classes; attend the Achieving Reunification Center (ARC) for

services; obtain stable employment; and participate in weekly family visits

with Child.

        Ms. O’Donnell, the case manager assigned to Father’s case from May

2015 through July 2016, testified that Father had a history of drug and

alcohol abuse. N.T., 7/12/17, at 11. Ms. O’Donnell stated that she referred

Father to three different drug and alcohol treatment programs while

assigned to his case, but Father failed to complete any of the programs. Id.

at 12.    Notably, Ms. O’Donnell testified that while Father would initially

participate in the programs, Father would eventually quit because “they

weren’t working with him or he didn’t like that place, or they couldn’t work

with his work schedule. He would take drug tests at the drug and alcohol

places [and] he said that they tainted his drug and alcohol and he wanted to

go to a different place.” Id.




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      Further, Ms. O’Donnell testified that she regularly requested that

Father submit to random drug screens.         Father complied only once and

tested positive for alcohol and benzodiazepines.          Id. at 12-13.   Ms.

O’Donnell testified that Father was unable to secure appropriate housing and

would not cooperate with the service providers assigned to his case. Id. at

17.   Notably, Father refused to sign releases for information and behaved

aggressively towards service providers.     Moreover, Ms. O’Donnell testified

that Father attended at least one visit under the influence of drugs. Id. at

21.

      Likewise, Ms. Feulner, Father’s CUA case manager from August 2016

to the time of the hearing, testified that Father failed to complete his drug

and alcohol programs.     Ms. Feulner indicated that Father was under the

influence of illicit substances during visits in August 2016, October 2016,

November 2016 and January 2017. Id. at 33-34. Further, she testified that

Father was minimally compliant in attending visits with Child, noting that of

the 23 visits that were offered to Father, Father attended 11 visits, of which

he was late for five, and failed to appear for 12 visits. Id. at 34.

      Additionally, in January 2017, Father was arrested for aggravated

assault, robbery, possession of an instrument of crime, auto theft by

unlawful taking, and receiving stolen property. Father remains incarcerated

and was scheduled for trial in December 2017. Id. at 50; DHS Exhibit 5.




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      Based on the foregoing, we reject Father’s assertion that the trial court

erred in terminating his parental rights based on his efforts to fulfill the

objectives set forth by DHS. Therefore, we discern no abuse of discretion or

error of law in the trial court’s determination that termination was warranted

under Section 2511(a)(2).

      We next consider whether the orphans’ court erred or abused its

discretion by terminating Father’s parental rights pursuant to Section

2511(b).

      Section 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. As this Court has
      explained, Section 2511(b) does not explicitly require a bonding
      analysis and the term ‘bond’ is not defined in the Adoption Act.
      Case law, however, provides that analysis of the emotional bond,
      if any, between parent and child is a factor to be considered as
      part of our analysis. While a parent’s emotional bond with his or
      her child is a major aspect of the subsection 2511(b) best-
      interest analysis, it is nonetheless only one of many factors to be
      considered by the court when determining what is in the best
      interest of the child.

           [I]n addition to a bond examination, the trial court can
           equally emphasize the safety needs of the child, and
           should also consider the intangibles, such as the love,
           comfort, security, and stability the child might have with
           the foster parent. Additionally, this Court stated that the
           trial court should consider the importance of continuity of
           relationships and whether any existing parent-child bond
           can be severed without detrimental effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (citations and quotation

marks omitted).



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      In addressing the best interests and welfare of Child, the trial court

found:

      Both [c]ase [m]anagers presented credible and convincing
      testimony regarding the lack of a parental bond between the
      Father and the Child, and both opined it would be in the best
      interest of the Child to terminate Father’s parental rights. They
      provided testimony of a loving bond that exists between the
      Child and her foster parents. The Child looks to them for safety,
      care, and for all her needs. Father has seen the Child [rarely
      during] the last two years, and claims it is all because he was
      incarcerated.    However, the record shows otherwise.        Both
      [c]ase [m]anagers opined that the Child would not suffer
      irreparable harm if Father’s rights were terminated and that
      termination of Father’s parental rights and adoption would be in
      the best interest of the Child. This [c]ourt agrees with their
      credible testimony and finds Father’s testimony incredible.

Trial Court Opinion, 9/19/17, at 21.

      Initially, Father argues that the trial court erred in terminating his

parental rights because DHS did not make reasonable efforts to reunify him

with Child, “which was something he desired and was willing to do.”

Father’s Brief at 15. When reviewing a termination decree on appeal under

Section 2511(a)(2), we do not consider whether DHS made reasonable

efforts.   Notably, our Supreme Court has rejected the argument that the

provision of reasonable efforts by the county children’s services agency is a

factor in termination of the parental rights of a parent to a child.   See In

the Interest of: D.C.D., a Minor, 105 A.3d 662, 673-74, 676 (Pa. 2014)

(rejecting the suggestion that an agency must make reasonable efforts to

reunify a child with their parent prior to the termination of parental rights

pursuant to Section 2511(a)). Thus, based on our Supreme Court’s holding

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in In the Interest of: D.C.D., a Minor, we find no merit to Father’s

argument.

      Moreover, the record supports the trial court’s finding that Child’s

primary bond is with her foster parents, rather than Father.           Both case

managers testified that Child refers to her foster parents as “mommy” and

“daddy.”    N.T., 7/12/17, at 19, 35.    Further, the record supports the trial

court’s finding that Child will not suffer irreparable harm if Father’s parental

rights are terminated.     Id. at 20, 37.      It was within the trial court’s

discretion to accept the testimony of the CUA case managers, and to

conclude that the benefits of a permanent home with her foster parents

would outweigh any emotional distress Child might experience if Father’s

parental rights were terminated.

      While instantly Father may profess to love Child, a parent’s own

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

of parental rights. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). As

we stated, 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.”

Id. at 1125. Rather, “a parent’s basic constitutional right to the custody and

rearing of his child is converted, upon the failure to fulfill his or her parental

duties, to the child’s right to have proper parenting and fulfillment of his or

her potential in a permanent, healthy, safe environment.” In re B., N.M.,

856 A.2d 847, 856 (Pa. Super. 2004) (citation omitted).


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      Accordingly, based upon our review of the record, we find no abuse of

discretion and conclude that the trial court appropriately terminated Father’s

parental rights under 23 Pa.C.S.A. § 2511(a)(2) and (b).      Where the trial

court’s determination is supported by the record, this Court must affirm.

See In re R.L.T.M., 860 A.2d 190, 191 (Pa. Super. 2004).

      Decree affirmed.

      P.J.E. Stevens joins the memorandum.

      Judge Dubow did not participate in the consideration or decision of the

      case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/18




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