J-S31016-18



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.C.H., MINOR          :   IN THE SUPERIOR COURT OF
    CHILD                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: C.J., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 3484 EDA 2017

              Appeal from the Order Entered September 25, 2017
      In the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-AP-0001248-2016,
                          FID No. 51-FN-001481-2015


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 10, 2018

        C.J. (Father) appeals from the order, entered in the Court of Common

Pleas of Philadelphia, terminating his parental rights to his eight-year-old son,

J.C.H., (Child) pursuant to 23 Pa.C.S. §§ 2511(a)(1),(2), (5), (8),1 and

____________________________________________


1   Section 2511 provides, in pertinent part:

        (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.

           (2) The repeated and continued incapacity, abuse, neglect
           or refusal of the parent has caused the child to be without
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(b)2 of the Adoption Act, and changing the goal to adoption.
____________________________________________


           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.

                                          * * *

           (5) The child has been removed from the care of the parent
           by the court or under a voluntary agreement with an agency
           for a period of at least six months, the conditions which led
           to the removal or placement of the child continue to exist,
           the parent cannot or will not remedy those conditions within
           a reasonable period of time, the services or assistance
           reasonably available to the parent are not likely to remedy
           the conditions which led to the removal or placement of the
           child within a reasonable period of time and termination of
           the parental rights would best serve the needs and welfare
           of the child.

                                         * * *

           (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.

        23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8).
2   Section 2511(b) provides:

        (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



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See 23 Pa.C.S. §§ 2511 et seq. After our review, we affirm.3

       The facts of this case are set forth by the trial court as follows:

       On April 1, 2015, the family became known to the Department of
       Human Services (“DHS”) when [] DHS received a substantiated
       General Protective Services (“GPS”) report alleging that the
       Child’s sibling suffered from dehydration and neglect. On July 10,
       2015, an adjudicatory hearing was held before the Honorable
       Jonathan Irvine who adjudicated the Child dependent. Thereafter,
       it was determined that Father resided in a halfway house and had
       an extensive criminal history. On September 25, 2015, the
       Community Umbrella Agency (“CUA”) held a Single Case Plan
       (“SCP”). The goals identified for Father were to comply with the
       recommendations of the Achieving Reunification Program
       (“ARC”)”). On December 20, 2016, DHS filed the underlying
       [p]etition to [t]erminate the Father’s parental rights to Child. On
       September 25, 2017, this [c]ourt ruled to involuntarily terminate
       Father’s parental rights to Child pursuant to 23 Pa.C.S. §§
       2511(a)(1), (2), (5), (8) and 23 Pa.C.S. § 2511(b). Thereafter,
       Father filed the instant appeal on October 23, 2017.

Trial Court Opinion, 12/15/17, at 2 (citations and footnote omitted). 4
____________________________________________


              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(b) (emphasis added).
3 We note that Mother’s parental rights were involuntarily terminated on
September 25, 2017; she is not a party to this appeal.

4 We note a discrepancy between the court’s determination at the conclusion
of the hearing and the termination decree. At the conclusion of the hearing,
the court stated: “Mother’s rights are terminated under 2511(a)(1), (2), (5),
(8) and (b).” N.T. Termination Hearing, supra at 17, and “Father’s parental
rights are terminated under 2511(a)(1), and 2511(b).” Id. (emphasis
added). The termination decree, however, lists subsections (a)(1), (2), (5)



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       Father raises the following issues for our review:

          1. Did [DHS] sustain the burden that Father’s rights should be
             terminated when there was no evidence that Father had
             ever been given the opportunity to establish and maintain
             permanency goals and reunification?

          2. Was there sufficient evidence presented to establish that it
             was in the best interest of the child to terminate Father’s
             parental rights?

Appellant’s Brief, at 4.5

       In reviewing an appeal from an order terminating parental rights, we

adhere to the following standard:

       [A]ppellate courts must apply an abuse of discretion standard
       when considering a trial court’s determination of a petition for
       termination of parental rights. As in dependency cases, our
       standard of review requires an appellate court 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
____________________________________________


and (8) as the basis for termination of Father’s parental rights. See Decree
of Involuntary Termination of Parental Rights, 9/25/17.

5 We note that Father filed a pro se notice of appeal and a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal on October 23, 2017. See
Pa.R.A.P. 1925(a)(2)(i). In his Rule 1925(b) statement, Father challenged his
constitutional and statutory right to proper notice of the hearing. See 23
Pa.C.S. § 2513(b). On December 1, 2017, the court appointed counsel for
Father, and on December 15, 2017, the trial court filed its Rule 1925(a)
opinion. Father’s appellate brief as due on January 18, 2018; on February 16,
2018, this Court issued a per curiam order noting no brief had been filed,
remanding the case for a determination of whether counsel had abandoned
Father, retaining jurisdiction and suspending the briefing schedule. We note
that Father’s counsel filed an appellate brief on March 12, 2018, and included
therein an amended Rule 1925(b) statement challenging the sufficiency of the
evidence supporting termination along with the appellate brief. In light of the
procedural irregularities in this case, the significance of the right involved and
the fact that the trial court did address the sufficiency issues in its opinion, we
will not find waiver.

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      supported, appellate courts review to determine if the trial court
      made an error of law or abused its discretion. As has been often
      stated, an abuse of discretion does not result merely because the
      reviewing court might have reached a different conclusion.
      Instead, a decision may be reversed for an abuse of discretion
      only upon demonstration of manifest unreasonableness, partiality,
      prejudice, bias, or ill-will. [T]here are clear reasons for applying
      an abuse of discretion standard of review in these cases. . . .
      [U]nlike trial courts, appellate courts are not equipped to make
      the fact-specific determinations on a cold record, where the trial
      judges are observing the parties during the relevant hearing and
      often presiding over numerous other hearings regarding the child
      and parents. Therefore, even where the facts could support an
      opposite result, as is often the case in dependency and
      termination cases, an appellate court must resist the urge to
      second guess the trial court and impose its own credibility
      determinations and judgment; instead we must defer to the trial
      judges so long as the factual findings are supported by the record
      and the court’s legal conclusions are not the result of an error of
      law or an abuse of discretion.

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (citations omitted;

some formatting added). 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 C.S., 761 A.2d 1197, 1199 (Pa. Super. 2000).

      Here, the court terminated Father’s parental rights based upon 23

Pa.C.S. § 2511(a)(1), (2), (5), and (8).    However, parental rights may be

involuntarily terminated where any one subsection of section 2511(a) is

satisfied, along with consideration of the subsection 2511(b) provisions. See

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

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

trial court relies upon more than one statutory basis under subsection 2511(a)




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for termination of parental rights, we will affirm if we agree with any one basis

asserted by trial court).

       At the time of the hearing, Child had been in foster placement for a year

and a half.     N.T. Termination Hearing, 9/25/17, at 12.     Father, who was

incarcerated at the time of the hearing, did not testify. Id. at 5. He was,

however, represented at the hearing.6

       Father had been incarcerated at the time of the initial permanency

review hearing, in October 2015, and thereafter failed to make his

whereabouts known to DHS and CUA. He also failed to maintain contact with

CUA, failed to compete his drug treatment program, failed to consistently visit

Child and was repeatedly incarcerated while Child was in foster care. See

Petition for Involuntary Termination of Parental Rights, Statement of Facts,

12/20/16. The court accepted the parties’ stipulation that, if called to testify,

the DHS caseworker would testify consistently with the Statement of Facts in

the petition.

       Vicky Paulino, CUA Case Manager, testified at the termination hearing

that she was unable to say when Child last saw Father.         N.T. Termination

Hearing, supra at 15. Paulino also testified that Child was safe, was not

receiving any specialized services and was doing well in foster care. Id. She

stated that Child shares his primary parent-child bond with foster father, who

____________________________________________


6We note that Child’s legal interests were advanced by Attorney Lawrence J.
O’Connor and Guardian ad litem Athena Mary Dooley appeared on behalf of
Child’s best interests. See In re: LBM, 161 A.3d 172 (Pa. 2017).

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is willing to adopt Child, and that Child calls foster father “dad.” Id. at 14.

Paulino also testified that Child does not look to Father as a father figure, and

that termination of Father’s parental rights would not cause Child any

irreparable harm. Id. at 15.

      Based upon the testimony presented at the hearing and the parties’

stipulation, the court determined that DHS had met its burden of establishing,

by clear and convincing evidence, termination of Father’s parental rights was

appropriate. Father states in his Statement of Questions Involved that DHS

did not meet its burden because he was not given the opportunity “to establish

and maintain permanency goals and reunification.” Appellant’s Brief, at 4.

However, in his brief, Father simply argues that he was incarcerated and “DHS

never put any goals in place for [F]ather to satisfy to achieve reunification.”

Appellant’s Brief, at 9. Father provides no support for this claim. In fact, he

cites to the part of the record that merely confirms that he was incarcerated

at SCI Coal Township and that he received notice of the hearing and did not

indicate that he wished to participate. N.T. Termination Hearing, supra at 5.

Moreover, the record contradicts Father’s claim; at the adjudicatory hearing

in July 2015, Father was referred to the Clinical Evaluation Unit for drug

screens, dual-diagnosis assessment and monitoring, as well as to ARC for

appropriate services.   In September 2015, Father’s permanency goal was

identification as reunification and Father’s objectives were to comply with the

ARC program and all appropriate services.        See Petition for Involuntary

Termination, Statement of Facts, 12/20/16.

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      The initial permanency review hearing was held on October 1, 2015;

DHS filed the petition to terminate Father’s parental rights on December 20,

2016, over one year later. Child has been in foster care, in the custody of

DHS, since November 5, 2015. During this time, while Child was in placement,

the court found that Father had not meaningfully participated in services or

made efforts to maintain contact with Child. Father did not appear at the

hearing and did not explain his conduct over the past twenty-three months.

See In re: J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003); see also In re:

D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999) (incarceration is not free pass

to avoid responsibilities attending role of parent). The court’s findings are

supported by the record. In re Adoption of S.P., supra.

      DHS established by clear and convincing evidence that Father’s

conduct, for the six months preceding the filing of the petition, has evinced a

“settled purpose of relinquishing parental claim to [C]hild or has refused or

failed to perform parental duties.”   23 Pa.C.S. § 2511(a)(1).    Further, the

court found that termination of Father’s parental rights would not negatively

impact Child and that termination was in Child’s best interests.       See 23

Pa.C.S. § 2511(b); see also In re Adoption of J.M., 991 A.2d 321, 324 (Pa.

Super. 2010) (where there is no evidence of a bond between a parent and

child, it is reasonable to infer that no bond exists; extent of bond-effect

analysis necessarily depends on circumstances of particular case). Further,

common sense dictates that courts considering termination “must also

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

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have a bond with their foster parents.” In re T.S.M., 71 A.3d 251, 268 (Pa.

2013), citing In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012).

        The court’s findings are supported in the record.        We conclude,

therefore, that the court, properly terminated Father’s parental rights under

23 Pa.C.S. §§ 2511(a)(1) and (b).

        Order affirmed.

        Judge Shogan joins the Memorandum.

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

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/18




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