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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: I.M.H., A MINOR             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA




APPEAL OF: A.H., FATHER

                                                    No. 1992 EDA 2014


                      Appeal from the Decree June 10, 2014
              In the Court of Common Pleas of Philadelphia County
                 Family Court at No(s): CP-51-AP-0000251-2014
                                        FID: 51-FN-274859-2009

BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                        FILED FEBRUARY 10, 2015

      Appellant, A.H. (Father), appeals from the June 10, 2014 decree

involuntarily terminating his parental rights to his daughter, I.M.H., born

June 2010.1 After careful review, we affirm.

      We summarize the relevant factual and procedural history of this case

as follows.   The Philadelphia Department of Human Services, Children and

Youth Division (DHS), became involved with this family in September 2012,

upon receipt of a report alleging that I.M.H. sustained head injuries while in

the care of a friend of Mother. N.T., 6/10/14, at 7-10. On September 25,

2012, I.M.H. was placed in the custody of DHS.          Trial Court Opinion,


1
  By decree dated July 17, 2014, the trial court voluntarily terminated the
parental rights of I.M.H.’s mother, C.M.S. (Mother). Mother did not file a
notice of appeal.
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8/13/14, at 2.2 It is undisputed that, at the time of her placement, I.M.H.

was residing in the care of Mother and not Father.

      On October 9, 2012, I.M.H. was adjudicated dependent. At the time of

her adjudication, Father was residing in a one-bedroom apartment with his

paramour, and he was attending an outpatient substance abuse treatment

program at North East Treatment Center (NET). Id.

      The record reveals that Father has a long history of drug-related

crimes.   N.T., 6/10/14, at DHS Exhibit 9.          In October 2012, shortly after

I.M.H.’s placement, Father was again arrested for a drug-related crime, to

which he pleaded guilty, and was sentenced to a minimum sentence of

eleven months’ incarceration and three years’ probation. Id.

      DHS established the following family service plan (FSP) goals for

Father: to participate in programs through the Achieving Reunification

Center (ARC), including, but not limited to, employment assistance; to

participate   in    parenting     classes;   to   obtain   a   General   Educational

Development        Test;   to   obtain   appropriate   housing;   to   participate   in

outpatient drug and alcohol treatment at NET; and to participate in

supervised visits with I.M.H.        N.T., 6/10/14, at 11, 16, 21.       In addition,

Father was directed to undergo a drug screen at the Clinical Evaluation Unit

(CEU) and to participate in all recommendations. Id. at 12.


2
   The trial court’s opinion pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a) is unpaginated. Therefore, we have assigned each page
a corresponding page number for ease of reference.
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      On May 27, 2014, DHS filed a petition for the involuntary termination

of Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5),

(8), and (b).    A hearing was held on June 10, 2014, during which DHS

presented the testimony of its caseworker, Tracy Duckery, and the Catholic

Social Services worker, Rolanda Johnson. Father testified on his own behalf.

      On June 10, 2014, the trial court involuntarily terminated Father’s

parental rights pursuant to Section 2511(a)(1), (2), (5), (8), and (b). On

July 7, 2014, Father filed a timely notice of appeal and a concise statement

of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(a)(2)(i). On August 13, 2014, the trial court filed its Rule

1925(a) opinion.

      On appeal, Father raises one issue for our review

            1. Did the trial court err in determining it was in the
            best interest of the child to terminate [F]ather’s
            parental rights?

Father’s Brief at 5.

      We review a termination order according to the following standard of

review.

            [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. In re R.J.T., 9 A.3d 1179, 1190 (Pa.
            2010).     If the factual findings are supported,
            appellate courts review to determine if the trial court

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            made an error of law or abused its discretion. Id.;
            R.I.S., 36 A.3d [567,] 572 [(Pa. 2011) (plurality)].
            As has been often stated, an abuse of discretion
            does not result merely because the reviewing court
            might have reached a different conclusion. Id.; see
            also Samuel Bassett v. Kia Motors America,
            Inc., 34 A.3d 1, 51 ([Pa.] 2011); Christianson v.
            Ely, 838 A.2d 630, 634 (Pa. 2003). Instead, a
            decision may be reversed for an abuse of discretion
            only      upon    demonstration       of    manifest
            unreasonableness, partiality, prejudice, bias, or ill-
            will. Id.

            As we discussed in R.J.T., there are clear reasons for
            applying an abuse of discretion standard of review in
            these cases. We observed that, unlike 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.
            R.J.T., [supra]. 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 Atencio, 650 A.2d
            1064, 1066 (Pa. 1994).

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

omitted).

     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

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           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), citing

23 Pa.C.S.A. § 2511. The burden is on 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).

      Instantly, we conclude the orphans’ court properly terminated Father’s

parental rights pursuant to Section 2511(a)(2) and (b), which provide as

follows.

           § 2511. Grounds for involuntary termination

           (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

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                 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); see also In re B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004) (en banc) (stating that this Court need only agree with

any one subsection of Section 2511(a), in addition to Section 2511(b), in

order to affirm the termination of parental rights), appeal denied, 863 A.2d

1141 (Pa. 2004).3




3
  Sections 2511(a)(5) and (8) do not provide a basis for the termination of
Father’s parental rights because I.M.H. was not removed from Father’s care.
See In re C.S., 761 A.2d 1197, 1200 (Pa. Super. 2000) (en banc) (stating
that termination under subsections (5) and (8) is not appropriate where the
child was not in the appellant’s care, and therefore could not have been
removed from the appellant’s care); In re Z.P., 994 A.2d 1108, 1118 (Pa.
Super. 2010) (holding that “a court may terminate parental rights under
subsection (a)(2), even where the parent has never had physical custody of
the child[]”).
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      To satisfy the requirements of Section 2511(a)(2), the moving party

must produce clear and convincing evidence regarding the 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) (citation omitted).           “The grounds for

termination [of parental rights under Section 2511(a)(2),] 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).

      With respect to Section 2511(b), this Court has explained the requisite

analysis as follows.

             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.

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            In re K.Z.S., 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 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

      On appeal, Father argues that the record evidence does not support

the decree terminating his parental rights because he has met his FSP goals

with respect to housing, drug and alcohol treatment, parenting classes, and,

“up until the last several months, was visiting his daughter regularly.”

Father’s Brief at 12. Upon review, we discern no abuse of discretion.

      Although Tracy Duckery, the DHS caseworker, testified that Father

completed his FSP goal regarding parenting classes, the record reveals that

Father last saw I.M.H. in December 2013, which was approximately five

months before DHS filed the petition for involuntary termination.        N.T.,

6/10/14, at 21.    Rolanda Johnson, the social worker at Catholic Social

Services who supervised Father’s visits, testified that Father had participated

in visits with I.M.H. twice per week throughout the history of this case. Id.

at 45. Johnson testified that, prior to December 2013, Father’s attendance

“was pretty good then. He was coming[.]” Id. Further, Johnson testified

that the visits between Father and I.M.H. went well.       Id. at 46.    When

questioned on cross-examination by the Child Advocate as to why he cannot

visit I.M.H. anymore, Father responded, “There aint [sic] no reason.” Id. at

60. However, Father testified he has another child who is three years old



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whom he continues to see.      Id. at 61.   Father’s testimony continued as

follows.

            [CHILD ADVOCATE]: Why would you see that child
            and not see [I.M.H.]?

            A. I don’t have to go through too much BS. I could
            just go see him.

Id.

      With respect to the FSP drug and alcohol treatment goals, Duckery

testified that the CEU issued a report of noncompliance in January 2013

because Father had a positive drug screen.     Id. at 34. The CEU issued a

second report of noncompliance in April 2013, for failure to attend. Id. at

32.   Duckery testified that Father’s probation requires him to obtain drug

treatment through NET, but that Father has failed to sign a consent form

permitting NET to provide information, so she does not know if he is

currently compliant. Id. at 37-38. Father testified he participates in drug

and alcohol treatment at NET once per week. Id. at 53.

      With respect to the housing goal, Father testified he has lived in two

separate residences in the last two or three years.      Id. at 64.    Father

testified he currently resides in a two-bedroom apartment.      Id.   Duckery

testified she requested to look at his new apartment, but Father told her

“that at this point it wasn’t necessary.” Id. at 20. Upon inquiry by the Child

Advocate, Father implied he did not let Duckery visit because, “I don’t plan

on being there for too long.” Id. at 64.


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       Duckery also testified that Father failed to comply with his FSP goal

involving job training and employment through ARC because Father “said he

wished to look [for a job] on his own.” Id. at 16-17. Father testified he is

unemployed, but he is looking for work. Id. at 52-53.

       The   foregoing   testimonial   evidence    demonstrates   that    Father’s

repeated and continued neglect or refusal to satisfy his FSP goals has caused

I.M.H. to be without essential parental care, control or subsistence necessary

for her physical or mental well-being.          Further, the causes of Father’s

neglect or refusal to satisfy his FSP goals cannot or will not be remedied.

Indeed, at the time of the termination hearing, I.M.H. was nearly four years

old and had been in placement for more than 20 months.            Father was on

probation at the time of the termination hearing for a drug-related crime

committed after I.M.H.’s placement.             Father had not participated in

supervised visits with I.M.H. for six months, had unstable housing, was

noncompliant with drug treatment at the CEU, did not accept employment

assistance through ARC, and he remained unemployed.           We conclude that

this   evidence   adequately   supports     termination   pursuant   to   Section

2511(a)(2).

       With respect to Section 2511(b), Father argues he shares a bond with

I.M.H. In the alternative, Father asserts there was insufficient evidence with

respect to whether a bond exists between him and I.M.H. We disagree.




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      Our Supreme Court confirmed that, “the mere existence of a bond or

attachment of a child to a parent will not necessarily result in the denial of a

termination petition.”   In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).         The

Court further stated that, “[c]ommon sense dictates that courts considering

termination must also consider whether the children are in a pre-adoptive

home and whether they have a bond with their foster parents.” Id. at 268

(citation omitted). Moreover, the Court directed that, in weighing the bond

considerations pursuant to section 2511(b), “courts must keep the ticking

clock of childhood ever in mind.”     Id. at 269.    The Court observed that,

“[c]hildren are young for a scant number of years, and we have an

obligation to see to their healthy development quickly. When courts fail …

the result, all too often, is catastrophically maladjusted children.” Id.

      In this case, the testimonial evidence demonstrates that, although a

bond on some level had started to develop between Father and I.M.H. during

supervised visits, Father and I.M.H. do not share a parent-child bond. N.T.,

6/10/14, at 26-27, 42, 48. Rather, a parent-child bond exists between the

foster mother and I.M.H., with whom she has resided since placement. Id.

at 26, 47-48. In fact, Johnson testified that it would harm I.M.H. if she was

removed from her foster mother.        Id. at 47.    In contrast, Johnson and

Duckey both testified that there would be no harm to I.M.H. if Father’s

parental rights were terminated.     Id. at 27, 48.     Further, to the extent

Father asserts that DHS did not satisfy its burden of proof because there was


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no bonding evaluation performed, it is well-settled that “the court is not

required to use expert testimony. Social workers and caseworkers can offer

evaluations as well. Additionally, Section 2511(b) does not require a formal

bonding evaluation.”     In re Z.P., 994 A.2d 1108, 1115-1116 (Pa. Super.

2010) (internal citations omitted). As such, Father’s issue fails with respect

to Section 2511(b).

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

discretion when it involuntarily terminated Father’s parental rights pursuant

to Section 2511(a)(2) and (b). See S.P., supra. Accordingly, we affirm the

trial court’s June 10, 2014 decree.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2015




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