J-S75016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: K.R.T., A MINOR                     :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
APPEAL OF: R.J.T. A/K/A J.C.,              :
FATHER                                     :
                                           :
                                           :
                                           :
                                           :   No. 1376 EDA 2016

                       Appeal from the Order April 1, 2016
                 In the Court of Common Pleas of Bucks County
                    Orphans’ Court at No(s): No. 2015-9103


BEFORE: BOWES, MOULTON, and MUSMANNO, JJ.

MEMORANDUM BY MOULTON, J.:                          FILED NOVEMBER 16, 2016

       R.J.T. (“Father”), appeals from the decree entered April 1, 2016, in the

Court of Common Pleas of Bucks County, which involuntarily terminated his

parental rights to his daughter K.R.T. (“Child”), born in March of 2011.1 We

affirm.

       Child was informally in the care of her paternal great-grandparents

from August 29, 2013 until Child was adjudicated dependent and came into

the temporary physical and legal care of the Bucks County Children and

Youth Social Services Agency (“CYS”) on November 1, 2013.          At the time

Child was adjudicated dependent, Father was homeless and using heroin.

____________________________________________


       1
         The trial court also terminated the parental rights of L.E.B.
(“Mother”) on the same date. Mother has not filed an appeal and is not a
party to the instant appeal.
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On March 20, 2015, Child’s permanency goal was changed to adoption. On

August 31, 2015, CYS filed a petition to involuntarily terminate Father’s

parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8).2

       On March 30, 2016, the trial court held a hearing on the termination

petition.    At the hearing, the trial court heard testimony from Father, via

telephone, and Shawn Rush, a CYS Intensive Services Worker. On April 1,

2016, the trial court entered a decree involuntarily terminating Father’s

parental rights to Child.

       On April 28, 2016, Father timely filed a notice of appeal, together with

a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).

       Father raises two questions on appeal:

            A. Was the Lower Court’s Decree based on insufficient evidence and
            should [Father’s] parental rights not have been terminated[?]

            B. Was [Father’s] incarceration wrongfully used against [Father] in
            making the determination to terminate his parental rights[?]

Father’s Br. at 4.

       We consider Father’s issues mindful of our well-settled standard of

review.


____________________________________________


       2
         The trial court opinion notes that, although the trial court docket
reflects that CYS filed the petition on September 2, 2015, that appears to be
the date the petition was internally electronically scanned following the
August 31, 2015 filing. Opinion, 5/25/2016, at 1 n.3 (“1925(a) Op.”).



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     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
     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. §§ 2101-2938, which requires a bifurcated

analysis. We have stated:

     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.

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

burden is upon the petitioner “to prove by clear and convincing evidence

that the asserted statutory grounds for seeking the termination of parental

rights are valid.” In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009). This

Court need only agree with the trial court’s determination under any one



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subsection of section 2511(a), along with section 2511(b), in order to affirm

the termination of parental rights.     In re B.L.W., 843 A.2d 380, 384

(Pa.Super. 2004) (en banc).

      We conclude that the trial court in this case properly terminated

Father’s parental rights 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. § 2511(a)(2), (b).

      To terminate parental rights pursuant to section 2511(a)(2), the

moving party must produce clear and convincing evidence regarding the


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following elements: “(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).

       Our Supreme Court has instructed that incarceration:

            while not a litmus test for termination, can be
            determinative of the question of whether a parent is
            incapable of providing “essential parental care, control or
            subsistence” and the length of the remaining confinement
            can be considered as highly relevant to whether “the
            conditions and causes of the incapacity, abuse, neglect or
            refusal cannot or will not be remedied by the parent,”
            sufficient to provide grounds for termination pursuant to
            23 [Pa.C.S.] § 2511(a)(2). [See In re: E.A.P., 944 A.2d
            79, 85 (Pa. Super. 2008)] (holding termination under §
            2511(a)(2) supported by mother’s repeated incarcerations
            and failure to be present for child, which caused child to be
            without essential care and subsistence for most of her life
            and which cannot be remedied despite mother’s
            compliance with various prison programs).

In re Adoption of S.P., 47 A.3d 817, 830 (Pa. 2012) (some internal

citations omitted).3

____________________________________________


       3
           Further, the Supreme Court stated that:

            If a court finds grounds for termination under subsection
            (a)(2), a court must determine whether termination is in
            the best interests of the child, considering the
            developmental, physical, and emotional needs and welfare
            of the child pursuant to § 2511(b). In this regard, trial
(Footnote Continued Next Page)


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      Father argues that the trial court terminated his parental rights based

on insufficient evidence. Father’s Br. at 7.4 Father contends that, though he

has been incarcerated for most of the time since CYS filed its petition, he

has continued to maintain a relationship with Child, despite the fact that CYS

has done nothing to promote reunification. Id. Father further argues that

CYS filed the petition to terminate his parental rights while he was

incarcerated, and CYS failed to meet its burden of proof as to an

incarcerated parent. Id. We disagree.

      We find the following portion of the trial court’s opinion relevant to our

inquiry with regard to section 2511(a)(2):

              Father, now thirty (30) years of age, is presently
          incarcerated in Lehigh County Prison and testified at the
          hearing via telephone regarding his recent history of
          arrests and incarceration, as follows: In November 2013,
          when Child came under the care of the Agency, Father was
          living on the streets with no housing of his own, and he
          was abusing heroin. He was imprisoned in the summer of
          2014 on charges of trespassing, and remained
          incarcerated for six (6) months, after which he was
          released to a recovery house in Philadelphia. However,
          Father incurred a parole violation for drug use and was
                       _______________________
(Footnote Continued)

          courts must carefully review the individual circumstances
          for every child to determine, inter alia, how a parent’s
          incarceration will factor into an assessment of the child’s
          best interest.

In re Adoption of S.P., 47 A.3d at 830-31.
      4
       As both of Father’s questions on appeal arise out of section 2511(a),
and can be addressed under subsection 2511(a)(2), we will address them
together.



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        again imprisoned, for two (2) months, in Lehigh County.
        He was paroled on December 18, 2014, and returned to
        the recovery house, where he remained clean from
        substance abuse for six (6) weeks.

           On January 23, 2015, Father was arrested again. Due
        to the successive violations, Father's parole was revoked
        and he was sentenced to serve his back time in Lehigh
        County. After he was released on March 16, 2015, Father
        testified that he was living on the streets and initially
        avoided substance abuse. On July 31, 2015, however, he
        was once again arrested in Bucks County, with criminal
        charges of defiant trespass, false identification and
        disorderly conduct. He received a sentence of twelve (12)
        months probation.         Since these criminal charges
        constituted a violation of his Lehigh County parole, he was
        again imprisoned in Lehigh County on January 22, 2016,
        and ordered to serve one-half (1/2) of the balance of his
        Lehigh County sentence.

           Father’s earliest parole release date is currently August
        26, 2016. Father testified that he hopes to be released,
        once again, to a recovery house for a period of thirty (30)
        days. After the 30 day period, he intends to move into his
        father's home and be ready to parent Child at that time.

           Father’s own father was not present at the hearing, and
        did not offer testimony in support of his son’s
        representation that he would be a resource for Father’s
        housing and/or other support. Additionally, Father offered
        no testimony as to his plans as to how he would acquire
        income or remain drug-free.

1925(a) Op. at 5-6.

     Additionally, Father testified on direct examination:

        Q. Is there anything else you want to tell the judge?

        A. I mean, yeah. I just – I mean, I know I made bad
        choices, you know. I just – I just, at the time I know I had
        plenty of chances.    At the time I was still in active
        addiction. I wish I would have taken it more seriously
        then.


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             I’ve been incarcerated. I’ve been clean now for almost
         8 ½ months now. I’ve been in this program here. It’s
         proved – it’s NA and AA all day long. Like I was clean for a
         bit, like I said, last time I got out and it felt good. It felt
         great. I was getting what I needed done.

            I know what I need to do and I want to do it. I don’t
         want to lose my daughter. I wish I could have one more
         chance. I don’t know if it’s possible. I know she needs
         stability. I’m asking for one more chance.

N.T., 3/30/16, at 25-26.

      Shawn Rush of CYS testified that he had serious conversations with

Father regarding the importance of permanency for Child. Id. at 29-30. Mr.

Rush further testified that Father had one visit with Child after the March 20,

2015 goal change, but that shortly after that visit Father dropped out of

contact, relapsed, and left the recovery house. Id. at 31. Mr. Rush stated

that the March 2015 visit was the only visit Father had with Child when he

was not incarcerated. Id. at 32. Mr. Rush continued:

         Q. So [as] 2015 continues on you told him that the
         Agency was thinking about filing [a petition to involuntarily
         terminate Father’s parental rights] in this case, and
         eventually the Agency did file.

         A. Yes.

         Q. Were you still talking to him?

         A. Yes.

         Q. Did you still tell him that he needed to get things
         together?

         A. Yes.

         Q. Did you tell him that the child couldn’t remain in limbo
         forever?

         A. Yes.

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           Q. He appear to understand that?

           A. Yes.

Id. at 32-33.

       This Court has stated that a parent is “required to make diligent efforts

towards the reasonably prompt assumption of full parental responsibilities.”

In re A.L.D., 797 A.2d 326, 340 (Pa.Super. 2002). Further, “[t]he 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.” Id.

at   337      “[A]   parent’s    vow    to     cooperate,   after   a   long   period   of

uncooperativeness regarding the necessity or availability of services, may

properly be rejected as untimely or disingenuous.” Id. at 340.5 Instantly,

the evidence establishes that Child was removed from Father’s care because

Father was living on the streets with no housing of his own, and he was

abusing heroin.       Rule 1925(a) Op. at 5.            Further, Father’s pattern of

incarceration and relapse into heroin use supports a conclusion that Father’s
____________________________________________


       5
        This Court stated in In re Z.S.W., 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.” In re Z.S.W., 946 A.2d 726, 732 (Pa.Super.
2008) (quoting In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa.Super.
2003)). 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).




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continued incapacity, abuse, neglect or refusal to parent could not or would

not be remedied.6

       We find that the trial court’s credibility and weight determinations are

supported by competent evidence in the record. See In re M.G., 855 A.2d

68, 73-74 (Pa.Super. 2004).            Accordingly, we find that the trial court’s

determinations regarding Section 2511(a)(2) are supported by sufficient,

competent evidence in the record.

       Next, although Father does not discuss Section 2511(b) in the

argument section of his brief, we will nonetheless consider this issue. See

In re C.L.G., 956 A.2d 999, 1010 (Pa.Super. 2008) (en banc) (considering

section 2511(b) despite the appellant’s failure to challenge the trial court’s

analysis). Once a trial court determines termination is proper pursuant to

section 2511(a), the trial court must also consider how terminating Father’s

parental rights would affect the needs and welfare of Child pursuant to 23

Pa.C.S. § 2511(b). Pursuant to section 2511(b), the trial court is to consider

“whether termination of parental rights would best serve the developmental,

physical and emotional needs and welfare of the child.” See In re C.M.S.,

884 A.2d 1284, 1286 (Pa.Super. 2005). “Intangibles such as love, comfort,

____________________________________________


       6
         Father has visits with Child while incarcerated and testified that he
wrote Child letters and sent pictures. N.T., 3/30/16, at 25. The trial court,
however, considered all the evidence presented and did not abuse its
discretion in finding grounds to terminate Father’s parental rights under
section 2511(a).



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security, and stability are involved in the inquiry into the needs and welfare

of the child.” Id. at 1287 (citation omitted). Further, 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.

(citation omitted). However, “[i]n cases where there is no evidence of any

bond between the parent and child, it is reasonable to infer that no bond

exists. The extent of any bond analysis, therefore, necessarily depends on

the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753, 762-

763 (Pa.Super. 2008) (citation omitted).

      Here, the trial court found that:

             Mr. Rush testified that Child, who is now five (5) years
         old, has been placed in five (5) different foster care
         placements since she came into the care of the Agency on
         November 1, 2013. Despite the initial instability of Child’s
         placements, she has been with her current foster family
         since November 28, 2014. Testimony revealed that Child
         exhibits some emotional and behavioral issues, that Child
         receives wrap-around services, and that Child’s speech is
         slightly delayed. Child lives with two (2) older foster care
         siblings in the foster home, with whom Child has bonded.
         She is involved, loved and accepted in the foster family.
         Mr. Rush testified that the foster parents, who have not
         wavered in their commitment to Child, have expressed an
         interest in adopting Child.

            Furthermore, Father also testified that he is aware that
         Child is being well cared-for by the foster family, and that
         he has been provided photographs of Child.

            Based on the above, we found the evidence of Child's
         substantial bond with the foster family to be clear and
         convincing.

1925(a) Op. at 8-9. The trial court further found:


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         The record reveals absence of a significant relationship
         between Father and Child, the existence of which would
         result in a negative effect on Child should Father’s rights
         be terminated. The record contains clear and convincing
         evidence that Father, now and for the reasonably
         foreseeable future, is not and will not be capable of
         adequately parenting Child. . . Although we do not doubt
         that Father loves [Child], when his repeated failure to
         remedy his parental incapacity is balanced against Child’s
         need for permanence and stability, this Court is
         constrained to conclude that it would not be in Child’s best
         interest for her life to remain on hold indefinitely. . .

Rule 1925(a) Op. at 9.

      The trial court’s conclusions are supported by the record. Shawn Rush

testified that Child has been living in her current foster home since

November 28, 2014.       N.T., 3/30/16, at 37.   Mr. Rush observed that the

foster parents are very affectionate with Child, and Child is affectionate with

the foster parents. Id. at 38. Mr. Rush stated that the foster parents are

“able to manage [Child] very well with love, with structure, with support.”

Id. at 38-39.

      Further, our review of the record supports the trial court’s conclusion

that Father and Child had no significant relationship. Mr. Rush testified that

when Child began visits with Father, Father was “like a virtual stranger” to

Child, and that later on, Child asked “Do I have to visit with Daddy

[Father]?”   Id. at 57.    We have stated, “[i]n cases where there is no

evidence of any bond between the parent and child, it is reasonable to infer

that no bond exists.” In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super. 2008).




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     We find that the competent evidence in the record supports the trial

court’s determination that there was no bond between Father and Child

which, if severed, would be detrimental to Child, and that the termination of

Father’s parental rights would best serve the needs and welfare of Child.

Thus, we will not disturb the trial court’s determinations. See In re M.G.,

855 A.2d at 73-74.

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

on the basis of section 2511(a)(2) and (b).

     Decree affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2016




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