J-S27016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: A.N.K., A MINOR                   IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA




APPEAL OF: L.K., SR.,

                                                          No. 1809 MDA 2015


             Appeal from the Decree entered September 17, 2015,
           in the Court of Common Pleas of Northumberland County,
            Orphans' Court, at No(s): Adoptee No. 10 Year of 2015.


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

MEMORANDUM BY DUBOW, J.:                                    FILED JUNE 15, 2016

        Appellant, L.K., Sr. (“Father”) appeals from the decree involuntarily

terminating his parental rights to A.N.K. (“the Child”) pursuant to the

Adoption Act, 23 Pa.C.S.A. § 2511(a) and (b). We affirm.

             SUMMARY OF FACTS AND PROCEDURAL HISTORY

        Prior to the initial placement of the Child, Father and A.M. (“Mother”)

had an extensive history with Northumberland Children and Youth Services

(“the Agency”) concerning the parties’ older child, and continuing after the

birth of the Child in January 2012.            Following the Child’s birth, multiple

referrals were made to the Agency following incidents of domestic violence


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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between the parties, as well as Mother’s untreated mental health issues and

Father’s alcohol abuse. During the Thanksgiving holiday in 2013, while the

Child was present, Mother threatened to kill Father and Father’s minor son,

L.K., Jr., (Mother’s stepson) with a butcher knife.         As a result of this

incident, Mother was incarcerated, and the Child was placed in Father’s care.

      The Child was adjudicated dependent on January 16, 2014, at which

time the Agency was granted legal custody of the Child, with the parties

retaining physical custody. However, five days later, on January 21, 2014,

the Child was placed in the physical custody of the Agency following a

referral that Mother was in violation of her bail condition that she has no

contact with Father or L.K., Jr. This referral occurred after Mother was found

hiding in a bedroom of the parties’ residence. The child has remained in the

physical and legal custody of the Agency since that date.

      On January 16, 2014, the following goals were established for the

parties: 1) to obtain and maintain stable, appropriate housing; 2) to obtain

and maintain employment and provide proof of same; and 3) to attend

anger management classes until successfully discharged.             Additionally,

Father was ordered to refrain from the use of alcohol and to enroll in and

successfully complete drug and alcohol counselling.         Father was also to

attend biweekly periods of supervised visitations with the Child.

      The Agency filed a Petition for the Involuntary Termination of Parental

Rights (“TPR petition”) as to each party on April 1, 2015, pursuant to 23

Pa.C.S. § 2511(a)(1), (2), (5), and (8).       The Orphans’ Court held an

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evidentiary hearing regarding the Agency’s TPR Petitions on September 17,

2015 (“TPR Hearing”).         The Agency presented testimony from a bonding

assessment expert,        three of its employees, and the Child’s kinship foster

mother.     Both Mother and Father testified on their own behalf.         At the

conclusion of the hearing, the Orphans’ Court granted the petitions based

upon Section 2511(a)(1) and (8), and Section 2511(b). This timely appeal

by Father follows.1

                                 ISSUES ON APPEAL

        Father raises the following issues on appeal:

           I.    Whether the [Orphans’ Court] erred in determining
                 that [the Agency] presented clear and convincing
                 evidence that grounds for involuntary termination
                 exist?

           II.   Whether the [Orphans’ Court] erred in determining
                 that the best interests of the [Child] would be served
                 by terminating parental rights?

Father’s Brief at 7 (excess capitalization omitted).

                                  LEGAL ANALYSIS

        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.” In re Adoption of

S.P., 47 A.3d 817, 826 (Pa. 2012). “If the factual findings are supported,

____________________________________________


1
    Mother’s appeal from this same order is pending at 1810 MDA 2015.




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appellate courts review to determine if the trial court made an error of law

or abused its discretion.” Id. We may reverse a decision based on an abuse

of discretion only upon demonstration of “manifest unreasonableness,

partiality, prejudice, bias, or ill-will.”   Id.   We may not reverse, however,

merely because the record would support a different result.” Id. at 827.

      We give great 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). The Orphans’ 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). In addition, in order to affirm the termination

of parental rights, this Court need only agree with any one subsection under

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

(en banc).

      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. 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 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. (citations omitted).




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                     Termination Pursuant to 2511(a)(1)

         Section 2511(a)(1) provides that the trial court may terminate

parental rights if the petitioner establishes that for six months, the parent

demonstrated a settled intent to relinquish a parental claim or a refusal or

failure to perform parental duties:

         a)    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 has evidenced a settled purpose of
                    relinquishing parental claim to a child or has
                    refused or failed to perform parental duties.


23 Pa.C.S.A. 2511(a)(1). This Court has interpreted this provision as

requiring the petitioner to demonstrate a settled intent to relinquish a

parental claim to a child or a refusal or failure to parent:

         To satisfy the requirements of section 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 Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations

omitted).

         This Court has defined “parental duties” in general as the obligation to

affirmatively and consistently provide safety, security and stability for the

child:




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         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 Court has held that the parental
         obligation is a positive duty which requires affirmative
         performance. This affirmative duty … 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.

Id.

      Moreover, a parent must exercise reasonable firmness in resisting

obstacles placed in the path of maintaining the parent child relationship:

         Parental duty requires that the parent act affirmatively
         with good faith interest and effort, and not yield to every
         problem, in order to maintain the parent-child relationship
         to the best of his or her ability, even in difficult
         circumstances.     A parent must utilize 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 B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal citations

omitted).

      And most importantly, “parental rights are not preserved by waiting

for   a more   suitable   or   convenient time   to   perform one’s parental

responsibilities while others provide the child with her physical and

emotional needs.” Id.

      In the instant case, the Orphans’ Court properly concluded that the

Agency met the requirements of Section 2511(a)(1).        The Orphan’s Court

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found that, during the relevant period prior to the Agency’s filing of the TPR

Petition on April 1, 2015, Father had failed to maintain stable housing; he

had continued to drink alcohol despite being ordered to abstain from it,

culminating in a third driving under the influence conviction; his visits with

the Child, as well as his contact with the Agency, were inconsistent; and he

failed to meet his established goals.

         A review of the Permanency Review order entered during
         the six months immediately preceding this date, along with
         the testimony presented during the [TPR Hearing] reveals
         that [Father has] failed to perform parental duties, in that
         [he has] provided no housing or financial support for the
         [Child] during this time period. [Father] has had no fewer
         than four residences since the inception of this case[.]
         Initially, [Mother and Father] lived together and were
         eventually evicted from that first home. Despite domestic
         violence concerns, they have intermittently lived together
         since that time, sometimes concealing this fact from
         caseworkers and authorities.         Both [parents] were
         incarcerated for at least part of this time period ([Father]
         for approximately a month in the Montour County
         Prison)[.]

            Although never the main concern, home conditions
         were noted to be cluttered, with the presence of numerous
         beer cans and cigarette butts, and the home was cold due
         to lack of insulation. Caseworkers were unable to further
         assess home conditions because [Mother and Father]
         denied them entry into the residence. Moreover, [Father]
         despite being ordered to abstain from alcohol, was
         observed to smell of alcohol, was suspected of driving
         [with] the [Child] after having imbibed alcohol, and
         admitted to drinking daily until prohibited from [drinking]
         alcohol by his probation. [Father] recently received a DUI
         as well (his third lifetime DUI). . . . The Agency was
         unable to confirm that either parent was maintaining
         employment as required by the Court’s order, although it
         appears from [Father’s] testimony that he at least is
         currently employed.


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                                   ***

           [Father] has completed the court-ordered drug and
        alcohol evaluation but has failed to follow through with the
        recommendations for counseling. It should also be noted
        that the evaluation itself was not completed until after the
        [TPR Petition] was filed.     Neither parent has pursued
        completion of anger management or otherwise attempted
        to meaningfully address the issues of domestic violence
        between them.

            [Father was] afforded one hour biweekly supervised
        visitation, but [was] inconsistent in [his] attendance,
        attending only . . . twenty . . . visits from January 2014
        until the visits were suspended in April of 2015. [Father]
        did attend and complete some parenting classes, but did
        not complete several other classes, including anger
        management.          [He was] unable to progress to
        unsupervised visitation due to [his] inability to transfer
        skills learned in the parenting classes that [he] attended to
        the visits. Visits were suspended due to the [Child’s]
        behaviors and discomfort with the visits. [Father has] also
        failed to maintain contact with [the Agency] on a
        consistent basis.

                                   ***

           In this case, where [Mother and Father] have both
        refused to perform certain parental duties, the Court’s
        decision to terminate [their] parental rights to the [Child]
        was justified by the facts clearly and convincingly
        presented at the [TPR Hearing].

Orphans’ Court’s Opinion, 11/25/15, at 3-6 (citations omitted).

     Father argues that the termination of his parental rights is not

supported by the evidence of record, because the Agency “did not take the

necessary steps to determine [his] ability . . . to separately and

independently parent the [Child] without the presence in the home of

[Mother], who by virtue of her violent behaviors and mental instability, is



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unable to provide a safe and secure home for the [Child].” Father’s Brief at

9. According to Father, he “is being punished for the sins [of] the Mother[,]”

id. at 17, because “Mother’s [traumatic childhood], prior to her cohabitating

with [him] is clearly the primary cause for the Agency’s involvement in this

case.” Id. at 12. Father asserts that, although he “does some have some

issues regarding alcohol abuse, these do not prevent him from adequately

caring for the [Child] and providing a secure, healthy atmosphere for him,

while the [Child] is no longer in the presence of [Mother].” Father’s Brief at

9.

      Our review of the record refutes Father’s claims.       In making this

argument, Father downplays his use of alcohol, and actually claims it has

been “remedied.”     Father’s Brief at 19.    Instead, he assigns blame to

Mother’s violent propensities and untreated health issues for the continued

placement of the Child.      We find that these arguments focus on the

credibility of the witnesses and we accept the Orphans’ Court’s crediting the

testimony of the Agency’s employees over Father’s testimony. In re M.G.,

supra.   Additionally, we note that nowhere in his testimony does Father

suggest that he was willing to parent the Child on his own, or that he would

prohibit Mother from living with him.   At the time of the TPR Hearing, the

parties were living together. Finally, the Orphans’ Court properly noted that

it could not consider Father’s efforts made after the TPR petition was filed

when considering termination under 23 Pa.C.S.A. section 2511(a)(1). See

23 Pa.C.S. § 2511(b) (providing that “[w]ith respect to any petition filed

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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 [TPR

Petition].”

      Accordingly, the court did not abuse its discretion in terminating

Father’s parental rights pursuant to 23 Pa.C.S. §2511(a)(1), and we need

not consider the other basis for termination under this section. See B.L.W.,

supra.

                Termination Pursuant to Section 2511(b)

      We also agree with the Orphans’ Court’s determination that the

Agency met its burden under 23 Pa.C.S.A. §2511(b) and that terminating

Father’s parental rights is in the best interest of the Child.

      With respect to Section 2511(b), our analysis shifts focus from

parental actions in fulfilling parental duties to the effect that terminating the

parental bond will have on the child. Section 2511(b) “focuses on whether

termination of parental rights would best serve the developmental, physical,

and emotional needs and welfare of the child.” In re: Adoption of J.M.,

991 A.2d 321, 324 (Pa. Super. 2010).

      In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court

found that “intangibles such as love, comfort, security, and stability are

involved in the inquiry into the needs and welfare of the child.” In addition,

the Orphans’ Court must also discern the nature and status of the parent-




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child bond, with utmost attention to the effect on the child of permanently

severing that bond. Id.

      In cases where there is no evidence of a bond between a parent and a

child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d

753, 762-63 (Pa. Super. 2008). Thus, the extent of the bond-effect analysis

necessarily depends on the circumstances of the particular case. Id. at 763.

      In the instant case, the Orphans’ Court relied upon the testimony from

the bond assessment expert at the TPR Hearing, noted his testimony that

Father actually had an unhealthy bond with the Child, and accepted the

expert’s conclusion that termination of Father’s parental rights was in the

Child’s best interests:

            Here, the Court examined the existence and quality of
         the bond between [Mother and Father] and the [Child],
         and a bonding assessment was completed by Dr. Kasey
         Shienvold on February 3, 2015. Due to the age of the
         [Child], this bonding assessment consisted of interviews
         with both [Mother and Father] and with the foster parents,
         as well as the observation of the [Child] with both [Mother
         and Father] and the foster family, but did not include
         interviews with the [Child].

                    Dr. Shienvold observed that the [Child] displayed
         neither fear nor excitement during his interactions with
         [Mother and Father] and that he separated without
         difficulty or sadness at the end of the interactions. He
         further concluded that, “given the experiences and what
         [the Child] was exposed to in that first year and a half [of
         his life], it is very, very difficult to believe that [the Child]
         has a strong and healthy attachment with [Mother and
         Father] that would cause him emotional strife or long-term
         detriment going forward.”

            Having acknowledged the existence of a bond, or
         attachment, the Court must then turn to assess the quality

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        of that bond in determining whether termination would
        serve the best interests of the [Child]. The Court found
        that the bond between [Mother and Father] and the [Child]
        was not a strong, healthy or beneficial one. Because of
        the age of the [Child], because [both Mother and Father]
        exhibited the three major destabilizing factors associated
        with the inability to forge or maintain healthy attachments
        (alcohol or drug abuse, domestic violence within the home,
        and untreated mental health issues) which would indicate
        a beneficial bond between [them] and the [Child], and also
        because of the limited insight and accountability present in
        [Mother and Father], Dr. Shienvold opined that, “of the
        destabilizers we talked about, they ticked off every box,
        which suggests that . . . the attachment is not a healthy
        one[,]” and that if the parental relationship between the
        [Child] and [Mother and Father] was terminated, “it would
        not be a long-term harmful thing.”        Furthermore, the
        [Child] has formed a beneficial bond with his foster
        parents.

           While the Court acknowledges that both [Mother and
        Father] love the [Child], in the end, the attachment has
        nevertheless not been positive for the [Child] and has been
        the cause of much turmoil in his life. In the end, the Court
        agrees with the analysis of Dr. Shienvold and therefore
        believes that termination of [Mother and Father’s] parental
        rights serves the best interest of the [Child].

Orphans’ Court Opinion, 11/23/15, at 6-7 (citations omitted).

     Father argues that Dr. Shienvold “inappropriately dismissed the love

between [him] and his son.” Father’s Brief at 18. On-cross examination by

Father’s counsel, Dr. Shienvold disagreed with counsel’s characterization of

Father’s love and affection as “kind of one of the core issues in a bonding

assessment[.]” Dr. Shienvold opined:

        A. No, it’s not. I mean it’s part of it, but it’s – I don’t think
           it is a core issue. The core issue is the health of that
           relationship which is defined by their consistency, and
           then as I talked about, the factors that establish a


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            healthy attachment. Certainly love and affection are a
            piece of that but you can – you can love somebody
            tremendously and still be very – there’s millions of
            abusers in this world who claim to love their victims
            very much. So -- and not have healthy relationships
            with them. So love is an issue but it’s not a core as a
            base of what it takes to - - it’s kind of like a square is a
            rectangle but a rectangle isn’t a square. You don’t - -
            love is important but it’s not the end all be all to form a
            healthy relationship.

N.T., 9/17/15, at 25-26.

      As noted above, while the Orphans’ Court acknowledged Father’s love

of the Child, it accepted the expert’s testimony that the attachment that

exists is not positive for the Child.   Once again, the credibility of the Dr.

Shienvold’s testimony, and the weight to be given it, are matters exclusively

within the province of the Orphans’ Court as fact finder. In re M.G., supra.

Thus, Father’s claim fails.

                                CONCLUSION

      In sum, our review of the record supports the Orphans’ Court’s

determination that the Agency met its statutory burden of proving by clear

and convincing evidence that Father’s parental rights should be terminated

pursuant to 23 Pa.C.S. §§ 2511(a)(1) and 2511(b). Accordingly, we affirm.

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/15/2016




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