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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: H.E.M., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
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    APPEAL OF: S.P.M., FATHER                  :   No. 241 WDA 2018

                    Appeal from the Decree January 24, 2018
                  In the Court of Common Pleas of Blair County
                         Civil Division at No: 2017 AD 52

BEFORE:      BOWES, J., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.:                          FILED SEPTEMBER 18, 2018

       S.P.M. (“Father”) appeals from the decree entered January 24, 2018 in

the Court of Common Pleas of Blair County that involuntarily terminated his

parental rights to his daughter, H.E.M. (“Child”), born in November 2016.1

After careful review, we affirm.

       Blair County Children, Youth and Families (“CYF”) became involved with

Child due to an incident of domestic violence that occurred less than a week

after her birth. Specifically, Mother alleged that Father struck her while she

was holding Child. Mother filed a protection from abuse (“PFA”) petition, but

later withdrew it, prompting CYF to seek emergency custody. The trial court

granted emergency custody on December 8, 2016.              The court entered a
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* Retired Senior Judge assigned to the Superior Court.

1  The decree also terminated the parental rights of R.E.B. (“Mother”). Mother
filed her appeal at Superior Court docket number 282 WDA 2018. We address
her appeal in a separate memorandum.
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shelter care order on December 15, 2016 and adjudicated Child dependent by

order entered December 28, 2016.

       On December 12, 2017, CYF filed a petition to terminate Father’s

parental rights to Child involuntarily. The trial court conducted a termination

hearing on January 23, 2018.2 The following day, the court entered a decree

terminating Father’s parental rights. Father timely filed a notice of appeal on

February 14, 2018, along with a concise statement of errors complained of on

appeal.

       Father now raises the following claims for our review.

       I. Whether the [trial c]ourt erred and abused its discretion by
       terminating the rights of [Father], despite clear evidence that
       [Father] corrected several outstanding issues outlined by [CYF],
       and substantial progress was made towards the correction of the
       remaining issues[?]

       II. Whether the [trial c]ourt erred and abused its discretion by
       failing to consider the bond that exists between [Father] and his
       daughter, [Child], and the effect that the termination of that bond
       would have on [Child?]

Father’s Brief at 5.

       We consider Father’s claims mindful of the following standard of review.

       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
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2 During the hearing, Child had the benefit of a guardian ad litem (“GAL”).
The trial court concluded that the GAL could represent both Child’s legal and
best interests, given that Child was just over a year old. N.T., 1/23/18, at 45.
We note that Child’s GAL did not submit her own appellate brief but did send
this Court a letter joining the arguments contained in CYF’s brief.

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     courts review to determine if the trial court made an error of law
     or abused its discretion. A decision may be reversed for an 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).

     Section 2511 of the Adoption Act governs involuntary termination of

parental rights. See 23 Pa.C.S.A. § 2511. It 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 the instant matter, the trial court terminated Father’s parental rights

pursuant to Section 2511(a)(2), (5), (8), and (b). In order to affirm, we need

to agree with the court as to only one subsection of Section 2511(a), as well

as Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze the court’s




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decision to terminate 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.A. § 2511(a)(2), (b).

      We begin by considering whether the trial court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(a)(2).

      In order to terminate parental rights pursuant to 23 Pa.C.S.A.
      § 2511(a)(2), the following three elements must be met: (1)
      repeated and continued incapacity, abuse, neglect or refusal; (2)
      such incapacity, abuse, neglect or refusal has caused the child to
      be without essential parental care, control or subsistence
      necessary for his physical or mental well-being; and (3) the


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      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) (citation

omitted). “The grounds for termination 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) (citations

omitted).

      In its opinion, the trial court concluded that CYF presented clear and

convincing evidence to terminate Father’s parental rights involuntarily. Trial

Court Opinion, 3/7/18, at 22. The court reviewed the history of this case and

the relevant evidence at length. Id. at 6-21. The court reasoned that Father

failed to cooperate with services and did not demonstrate desire or consistent

effort to remedy the conditions resulting in Child’s placement in foster care.

Id. at 22.

      Father contends that CYF failed to meet its burden of proof. Father’s

Brief at 8-15. Father maintains that he is making substantial progress toward

completing services by attending an intensive outpatient treatment program

addressing substance abuse and mental health issues. Id. at 12-13. Father

also maintains that he has shared custody of his three other children, which

proves that he can care for Child. Id. at 13-14.

      Our review of the record reveals the following. After Child’s placement

in foster care and adjudication of dependency in December 2016, the trial

court ordered Father to comply with a series of reunification goals.       These

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goals included 1) cooperating with Family Intervention Crisis Services

(“FICS”); 2) undergoing a psychological evaluation; 3) participating in the Men

Helping Men domestic violence program; and 4) continuing counseling with

his psychologist. Order of Adjudication and Disposition, 12/28/16, at 5.

        Initially, Father made substantial progress toward completing his goals.

Father complied with FICS reunification services, including supervised visits.

Permanency Review Order, 5/4/17, at 8. He completed the Men Helping Men

program. Permanency Review Order, 6/21/17, at 8. He also participated in

an evaluation with psychologist, Terry O’Hara, Ph.D. Among other things, Dr.

O’Hara recommended that Father participate in drug screens and an intensive

outpatient treatment program aimed at addressing substance abuse, anger

management, aggression, and emotional regulation concerns. Psychological

Evaluation Report, 4/27/17, at 29.

        Father’s progress deteriorated during the second half of 2017. Mother

filed PFA petitions against Father in June 2017 and August 2017. Permanency

Review Order, 6/21/17, at 8; Permanency Review Order, 11/8/17, at 8-9.3

Mother later withdrew the June 2017 petition but obtained a final PFA order

with respect to the August 2017 petition. Permanency Review Order, 11/8/17,

at 9.    Despite this order, Father resumed living with Mother, and another


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3 In its permanency review order entered November 8, 2017, the trial court
changed Child’s permanent placement goal to adoption.




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incident of domestic violence occurred in December 2017.4             Permanency

Review Order, 12/19/17, at 2.           Father also failed to attend four intensive

outpatient treatment sessions and admitted to continued marijuana use. Id.

at 3. Father missed two of his meetings with FICS reunification services, which

then discharged him unsuccessfully. Id.

        Dr. O’Hara reevaluated Father in October 2017 and found no evidence

that he would be able to provide appropriate care for Child within a reasonable

time.    Psychological Evaluation Report, 11/8/17, at 17.        He observed that

Father tested positive for opiates and marijuana in August 2017 and refused

a drug screen later that same month. Id. at 14. Father’s intensive outpatient

treatment program discharged him unsuccessfully and he declined to attend

further substance abuse treatment. Id. Moreover, Father was inconsistent

in attending counseling with his psychologist. Id. Dr. O’Hara warned that

Father posed a high risk for future violence. Id. at 17.

        Father remained noncompliant at the time of the termination hearing.

Father resumed attending his intensive outpatient treatment program but his

drug screens continued to produce positive results.5 N.T., 1/23/18, at 10-11.

Father testified that he was still failing to attend his counseling appointments

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4 Father faced a series of criminal charges stemming from the December 2017
incident. Permanency Review Order, 12/19/17, at 2. The charges were later
withdrawn after Mother began dating the police officer who filed them. N.T.,
1/23/18, at 31-32.

5Father’s drug screen levels were “consistently dropping.” N.T., 1/23/18, at
11.

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“[b]ecause of transportation.” Id. at 38. Father’s volatile relationship with

Mother also remained a concern. Father filed a PFA petition against Mother

alleging that she threatened his life. Id. at 12, 25. Ominously, Mother had

moved into a new home that was approximately one block away from Father’s

home. Id. at 7.

       Thus, the record supports the trial court’s findings pursuant to Section

2511(a)(2). While Father made initial progress toward completing services,

he failed to maintain that progress. Father produced positive drug screens

and failed to comply with intensive outpatient treatment, mental health

counseling, and FICS reunification services. Father also engaged in domestic

violence and continued to pursue a relationship with Mother as recently as

December 2017, despite the existence of a final PFA order against him. While

Father made a last-minute attempt to comply with services by resuming his

intensive outpatient treatment program, his efforts were simply too little, too

late. Child entered foster care in December 2016, the month after she was

born, and has remained there ever since. Because it is clear that Father will

not remedy his parental incapacity and resume caring for Child at any point

in the foreseeable future, we conclude that the court did not abuse its

discretion.6

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6While Father contends that he has shared custody of his three other children,
which proves that he can care for Child, that argument is meritless. The
record contains little if any evidence concerning the extent and quality of the
care that Father provides his other children. Even assuming that Father does



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       We next consider whether the trial court abused its discretion pursuant

to Section 2511(b). The requisite analysis is as follows.

       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) (quotation marks and

citations omitted).

       The trial court found that Father’s visits with Child go well but concluded

that Father and Child do not share a bond. Trial Court Opinion, 3/7/18, at 22-

23. To the extent Father and Child do share a bond, the court found that their


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provide appropriate care, “evidence concerning a parent’s ability to care for
another child is irrelevant and inadmissible in a proceeding to terminate
parental rights with regard to the child at issue.” A.L.D., 797 A.2d at 338.

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bond is not strong, because Child has never lived with Father, and spent only

a limited amount of time with him during supervised visits. Id. The court

found that Child shares a bond with her pre-adoptive foster parents, with

whom she has lived since December 2016. Id. at 23.

      Father contends that the trial court disregarded evidence demonstrating

that he and Child do share a bond. Father’s Brief at 16. Father takes issue

with the court’s conclusion that no bond exists due to the limited amount of

time that he and Child have spent together, calling it contrary to natural law.

Id. at 17. He insists that a necessary and beneficial bond forms the moment

a parent first sees his or her child. See id. at 17-18 (“Upon seeing their child,

a bond is created between the parent and that child”).

      We again discern no abuse of discretion by the trial court. As Father

argues, it was undisputed during the termination hearing that his visits with

Child go well. CYF casework supervisor, Scott Brumbaugh, testified that he

observed Father being “very nurturing” toward Child and that Child “does go

to [Father].” N.T., 1/23/18, at 18. FICS employee, Valerie Reynolds, testified

that Child appears to love Father and “they definitely have a connection.” Id.

at 26-27.

      However, as discussed above, Child was born in November 2016 and

entered foster care in December 2016. By the time of the hearing on January

23, 2018, Child was just over a year old. Child had spent nearly her entire

life in foster care, and her only consistent experience withFather had been




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supervised visits.7 Under the circumstances, it was reasonable for the trial

court to conclude that Father and Child do not share a necessary and beneficial

bond. See In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008) (observing

that the relationship between K.Z.S. and his mother “must be fairly

attenuated,” given that K.Z.S. had been in foster care most of his young life,

and that he had only limited contact with his mother during that time).8

       We also reject Father’s suggestion that he formed a bond with Child the

moment he first saw her. Our case law is clear that it takes more than mere

biology to form a bond worthy of preservation pursuant to Section 2511(b).

As this Court has emphasized, “a child develops a meaningful bond with a

caretaker when the caretaker provides stability, safety, and security regularly

and consistently to the child over an extended period of time.” Matter of

Adoption of M.A.B., 166 A.3d 434, 449 (Pa. Super. 2017). In the instant

case, Child’s pre-adoptive foster parents have been her primary source of
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7 The record does not support the trial court’s finding that Father never lived
with Child. Father, Mother, and Child lived together at least briefly prior to
the court’s order granting emergency custody. See Order of Adjudication and
Disposition, 12/28/16, at 4 (“At the time of the alleged incident . . . [Father]
and [Mother] resided together.”).

8 As part of his argument with respect to Section 2511(a), Father contends
that CYF limited his visitation unfairly based on Mother’s lack of progress, and
that the trial court then used his limited visitation as an excuse to terminate
his parental rights. Father’s Brief at 11-12. Father bases his argument on
CYF’s decision to limit his visitation to three hours rather than four hours at a
time. Id. Because we see no reason to believe that Father and Child would
have formed a significant bond if only Father’s visits had been one hour longer,
this claim is meritless.



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stability, safety, and security throughout her life. Thus, the record supports

the trial court’s finding that Child shares a significant bond with her foster

parents, and that terminating Father’s parental rights would best serve Child’s

needs and welfare by allowing her to achieve permanence through adoption

into their family.9

       Based on the foregoing, we conclude that the trial court did not abuse

its discretion by terminating Father’s parental rights involuntarily. Therefore,

we affirm the court’s January 24, 2018 decree.

       Decree affirmed.




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9We note that Dr. O’Hara’s testimony during the permanency review hearing
on October 31, 2017, supports this conclusion.

       Well I think there is some limitation of me responding to this as I
       have no[t] been able to observe either party with [Child] since
       March of 2017. There have been reports from FICS’ perspective
       that overall both parties do well with [Child]. It would be my
       opinion that yes there would be some detriment if termination
       were ever to occur. I think based on the parents[’] interactions
       with their daughter that there would be some potential detriment
       for [Child] here. On the other hand, it is my opinion at this point
       that there are so many ongoing pervasive significant concerns that
       the concerns from my perspective and the risk factors for [Child]
       if she were to be placed with her parents these concerns would
       outweigh any potential detriment.

N.T., 10/31/17, at 13-14.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2018




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