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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF: M.G.B., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.B., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 2688 EDA 2019

                Appeal from the Order Entered August 15, 2019
    In the Court of Common Pleas of Montgomery County Orphans' Court at
                           No(s): No. 2018-A0023


BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                          Filed: April 15, 2020

       J.B. (Father) appeals from the decree entered on August 15, 2019, that

granted the petition filed by the Montgomery County Office of Children and

Youth (OCY or Agency) seeking the involuntary termination of Father’s

parental rights to M.G.B. (Child), born in June of 2016.1 We affirm.

       Child is medically fragile. She was born prematurely in Kansas, where

Mother was living at the time, and suffered neonatal complications.            Child

spent the first six months of her life in the hospital and then was in Mother’s

sole care for the next few months. In May of 2017, Mother took Child on a

trip to Pennsylvania to visit family. OCY first became involved with the family

on May 21, 2017, when Child was hospitalized in Philadelphia for acute alcohol

____________________________________________


1J.N.L.’s (Mother) parental rights to Child were also terminated on the same
date. Mother filed a separate appeal with this Court, which is addressed in a
separate memorandum at No. 2687 EDA 2019.
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poisoning, caused by Mother’s mixing of Child’s formula with vodka instead of

water.   OCY obtained custody of Child on June 13, 2017, when she was

released from the hospital, and placed her directly into in the care of her pre-

adoptive foster mother.

      On May 3, 2019, OCY filed its petition for termination of Father’s rights

and alleged grounds under 23 Pa.C.S. § 2511(1), (2), (8) and (b).             A

termination hearing was held on August 14, 2019, at which the orphans’ court

found that the following facts had been established:

            [Father] … acknowledged that he knew about [Mother’s]
      pregnancy before … [C]hild was born, that he drove … [Mother] to
      the airport when she was pregnant and intended to go to Kansas,
      that he knew that … [C]hild was his….

            He also testified that he remained in touch with … [M]other
      when she was in Kansas and during the period that … [C]hild was
      born prematurely and hospitalized for a period of six months.
      From his testimony[,] we know that he did not go to Kansas, and
      he provided no evidence that he provided for … [C]hild in any way
      during the ten months that she was [a] resident with … [M]other
      in Kansas.

            He did not see … [M]other or … [C]hild until May of 2017,
      when … [M]other had briefly returned to Pennsylvania. He saw
      her then on one occasion shortly before [Child] was injured …
      when … [M]other gave her vodka mixed with baby formula on May
      21st.

            After that, … [F]ather testified that he … was not in touch
      with … [M]other and did not know where she was. By that time,
      … [C]hild was hospitalized, and … [M]other was arrested and
      incarcerated in Pennsylvania. In fact, he assumed she had gone
      back to Kansas.

            The only explanation he provided for the lengthy period of
      time prior to 2019[,] when he had virtually no contact with …
      [C]hild, no visits with … [C]hild, was that he did not—it was that
      for the first year or first ten months, he knew where … [C]hild

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      was, but she was in Kansas[] and[,] thereafter[,] he didn’t know
      where [she] or … [M]other was.

            The testimony established that [OCY] was not made aware
      of … [F]ather’s identity by … [M]other, even though … she had an
      obligation to cooperate with [OCY] and provide his identity.

             It was only through the efforts of [OCY] combing through
      the records, including medical records from Kansas, that they did
      identify … [F]ather’s name, and [OCY] actually affirmatively
      reached out to him.

             He testified that he responded promptly to [OCY] and
      asserted in … March of 2018 that he wished to participate and
      have a relationship with his daughter but having not had a
      relationship prior to that point.

N.T. Termination, 8/14/19, at 249-51. The orphans’ court determined that

OCY had proven Father’s parental rights should be terminated pursuant to

sections 2511(a)(1) and (b) and entered a final decree, accordingly, on August

15, 2019.

      On August 28, 2019, Father filed a timely notice of appeal, along with a

timely Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Herein, Father raises the following issues for our review:

      I.    [Whether] the [orphans’] [c]ourt committed an error of law
            and/or abuse of discretion when it held that [OCY] had
            proven by “clear and convincing evidence” that [Father’s]
            parental rights should be terminated pursuant to 23 Pa.C.S.
            § 2511(a)(1)[,] where [Father] was making substantial
            progress on his Family Service Plan[s] goals as evidenced
            by the testimony at the hearing and Family Service Plans
            themselves[?]

      II.   [Whether] the [orphans’] court committed an error of law
            and/or abuse of discretion when it terminated [Father’s]
            parental rights pursuant to 23 Pa. C.S. § 2511(b) on the
            basis that the developmental, physical, [and] emotional …
            welfare of … [C]hild[] was best served by termination of []


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            [F]ather’s rights where he was making substantial progress
            on the Family Service Plans[?]

Father’s Brief at 4.

      We review 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:

      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).



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      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

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.,

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      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).

      We need only agree with the orphans’ 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).         Herein, we analyze the

court’s decision to terminate under section 2511(a)(1) 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:

              (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).




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     We first address whether the trial court abused its discretion by

terminating Father’s parental rights pursuant to section 2511(a)(1).

     To satisfy [s]ection 2511(a)(1), the moving party must produce
     clear and convincing evidence of conduct sustained for at least the
     six months prior to the filing of the termination petition, which
     reveals a settled intent to relinquish parental claim to a child or a
     refusal or failure to perform parental duties.

In re C.M.S., 832 A.2d 457, 461 (Pa. Super. 2003) (quoting Matter of

Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)). In C.M.S.,

we further acknowledged the following statement by our Supreme Court:

     There is no simple or easy definition of parental duties. Parental
     duty is best understood in relation to the needs of a child. A child
     needs love, protection, guidance, and support. These needs,
     physical and emotional, cannot be met by a merely passive
     interest in the development of the child. Thus, this [C]ourt has
     held that the parental obligation is a positive duty which requires
     affirmative performance.

     This affirmative duty encompasses more than a financial
     obligation; it requires continuing interest in the child and a
     genuine effort to maintain communication and association with
     the child.

     Because a child needs more than a benefactor, parental duty
     requires that a parent ‘exert himself to take and maintain a place
     of importance in the child’s life[.’]

C.M.S., 832 A.2d at 462 (quoting In re Burns, 379 A.2d 535, 540 (Pa.

1977)).

     Instantly, Father avers that the orphans’ court erred in terminating his

parental rights under section 2511(a)(1). Father’s only argument is that he

“had been making substantial progress on his Family Service Plan goals[,]” at

the time that OCY filed its petition for termination.    Father’s Brief at 5-6.



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Although Father does appear to have complied with some of his initial Family

Service Plan goals, i.e., evaluations for drug and alcohol treatment, mental

health evaluations, and maintaining stable housing, his progress has been

inconsistent. Father has been employed, but was working minimal hours over

the past year due to medical issues. N.T. Termination at 174. He testified

that his employment had just become more stable during the four weeks prior

to the termination hearing.     Id. at 185.    Father also indicated that he

straightened out his substance abuse issues “for the past year now[,]” but

also admitted to “some slipups” with the use of alcohol and marijuana. Id.

Moreover, the record is void of any evidence of affirmative action on the part

of Father to perform his parental duties and/or to develop any sort of parental

relationship with Child.

      At the conclusion of the termination hearing, the orphans’ court opined

on the record:

             I conclude from the evidence that was presented … that
      [Father] became aware that … [C]hild was in the custody of [OCY]
      in March of 2018. A DNA test … was ordered by the court and
      came back positive, and both [Father] and [OCY] had been
      notified of the positive results by April of 2018.

             This [c]ourt was asked to consider granting visits to both of
      the birth parents … and was asked to consider by the [g]uardian
      ad [l]item that because of the aggravated circumstances, no
      reunification efforts should be made. A petition to that effect was
      filed by the [g]uardian ad [l]item in this case and was scheduled
      for a hearing.

            By April of 2018, the [c]ourt ordered that [M]other and
      [F]ather … cooperate with OCY and follow through with
      recommendations. They were ordered to both obtain drug and
      alcohol and mental health evaluations and provide copies to OCY

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     and that supervised visits may be scheduled at the OCY’s
     discretion with either [M]other or [F]ather following a review of
     the drug and alcohol evaluations. That was this court’s order
     dated April 30[], 2018.

           In addition, at a subsequent permanency review hearing,
     after the [A]gency did receive mental health evaluations for …
     [M]other and … [F]ather, the [c]ourt was more specific in
     permitting visits to begin to be scheduled.

            On June 26[], 2018, the [c]ourt ordered that reunification
     efforts shall be made with … [M]other and … [F]ather….

            So[,] well over a year ago, … [F]ather was in a position to
     persuade OCY that[,] having obtained [a] drug and alcohol
     evaluation and mental health evaluation and either complying with
     the recommendations or having no recommendations he needed
     to follow up on, … visits [should] begin.

           Sometime in 2019, he had complied with the evaluation
     requirements and had the opportunity again to ask for visits. Ms.
     Spano[, an OCY caseworker,] … testified that she expects a parent
     to reach out to her to seek to schedule visits. He certainly knew
     her phone number, had her contact information, and had the
     opportunity to reach out and schedule visits. While his counsel
     suggests that he complied with the recommendations of the
     [F]amily [S]ervice [P]lan, initially those recommendations and
     goals were limited to getting him in a position to begin visits with
     … [C]hild so that he could[,] for the first time[,] begin to establish
     a relationship with [her].

           [C]hild is now over three years old, and the first visit that
     [Father] had with her occurred or was scheduled for August 1[],
     2019. Even that visit was terminated early by the caseworker due
     to the inappropriate and aggressive behavior and inappropriate
     language used towards the caseworker by [Father].

            Simply put, [Father] has not availed himself of the
     opportunity to have visits, which the [c]ourt and the [A]gency
     [have] attempted to make available to him, and [he] has not
     taken adequate steps to develop any relationship with … [C]hild,
     much less a positive, nurturing, close, stable, reliable parental
     relationship with … [C]hild.

           As I said, the factors I’m required to consider with respect
     to a request for termination of parental rights under [s]ection

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      2511(a)(1) [are] if a parent has failed to perform parental duties
      for a period of more than six months, as is the case here, what is
      the parent’s explanation for his or her conduct[,] and what has
      been the quality of the contact he’s had once he resumed
      contact[,] and what would be the effect of termination of parental
      rights.

            For the most recent period, [Father] candidly told the
      [c]ourt that he had some health problems that caused him
      perhaps to have some delay in setting up the visits, but that’s
      simply not an adequate explanation for three years of no
      meaningful efforts to create a meaningful relationship with …
      [C]hild. There has been virtually no contact except at a couple of
      court hearings and the one aborted August 1[], 2019[] visit
      between [Father] and [C]hild. Therefore, no relationship has been
      created. The quality of the contact has not been beneficial to …
      [C]hild, and the termination of parental rights would not be
      detrimental to [her].

            Therefore, I conclude that under [s]ection 2511(a)(1), …
      OCY has proved by clear and convincing evidence the elements
      required that a ground for termination of parental rights with
      respect to [Father] has been established.

N.T. Termination at 253-57. After careful review, we discern that the court’s

determinations are well-supported by the record.

      As for the orphans’ court’s analysis under section 2511(b), Father baldly

asserts that the court failed to take into consideration “how well” he was doing

in complying with his Family Service Plan goals and the fact that he was

“beginning to seek visitation.”    Father’s Brief at 8.    The orphans’ court

concluded, however, that “[F]ather has not established a parental bond with

… [C]hild and there would be no detriment to … [C]hild of severing that

parental bond.” N.T. Termination at 265. “In the meantime,” the court added,

“[C]hild has been raised in a home that is described as loving and secure

where she is bonded and attached.” Id. at 266.


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      The following observations of OCY further support the orphans’ court’s

determination:

      Father has had only one visit with … Child since her placement
      into foster care on June 13, 2017[,] and has failed to act in a
      parental capacity to provide for all of … Child’s needs. Father has
      not provided a home for … Child or demonstrated he can be a safe
      and stable caregiver for … Child. Consequently, the [orphans’]
      court properly concluded that a bond between Father and … Child
      does not exist and that … Child would not suffer a detriment as a
      result of termination of Father’s parental rights.

      Furthermore, the evidence established that … Child has resided in
      a pre-adoptive home since June 13, 2017. [] Child is living in a
      nurturing and loving environment with her foster family. Her
      foster mother is meeting all of her needs[,] including her special
      medical needs. [] Child needs stability and a permanent home
      through adoption.

OCY’s Brief at 14. Moreover, the record reflects that Child has bonded with

her foster mother, “is being nurtured by her and is thriving with her[;] she

looks to her for support and security.” Child’s Brief at 32. Counsel for Child

adds that the foster mother is “ready, willing, and able to parent … [C]hild,

and she wants to have … [C]hild be a permanent part of the family.” Id. We

ascertain no abuse of discretion or error of law by the trial court.

      Accordingly, we affirm the decree terminating Father’s parental rights

pursuant to 23 Pa.C.S. § 2511(a)(1) and (b).

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/20




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