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                               2017 PA Super 188

IN RE: D.L.B., MINOR CHILD               :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
APPEAL OF: T.L.S.                        :         No. 186 WDA 2017


                  Appeal from the Order, January 11, 2017,
                in the Court of Common Pleas of Blair County
                  Orphans’ Court Division at No. 2016 AD 51


BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


OPINION BY FORD ELLIOTT, P.J.E.:                      FILED JUNE 15, 2017

      T.L.S. (“Father”) appeals from the January 11, 2017 order granting the

petition of the Blair County Office of Children, Youth and Families (“CYF”) to

involuntarily terminate his parental rights to his minor female child, D.L.B.

(“Child”), pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), and (b). After

careful review, we affirm.

      The relevant facts and procedural history of this case may be

summarized as follows. Child was born in May 2016 to Father and S.R.B.

(“Mother”)1 and was placed in foster care six days after being discharged

from the hospital after birth.     At the time of her birth, Child exhibited

symptoms of prenatal drug use by Mother that resulted in Child being placed

on medical morphine.         (Notes of testimony, 5/17/16 at 11-15.)      CYF


1
  The record reflects that Mother had a long-standing history of drug abuse
and mental health issues and died on October 24, 2016, while she was
incarcerated in the Blair County Prison.
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previously took custody of Mother and Father’s older daughter and Child’s

sister, W.R.B., who was born in February 2012 and was adjudicated

dependent on June 30, 2015.2

      On May 17, 2016, the trial court conducted an adjudication hearing

with respect to Child. The record reflects that Father was incarcerated at the

time of this hearing and did not express a desire to be a permanent resource

for Child. (See notes of testimony, 5/17/16 at 27-28; Order of Adjudication

and Dependency, 5/23/16 at 2, ¶ 1.) At the conclusion of this hearing, the

trial court specifically directed Father to comply with all terms and conditions

of his parole; to refrain from the use or possession of controlled substances;

and to attain and maintain stable housing and employment. (See Order of

Adjudication and Dependency, 5/23/16 at 5-6, ¶ 17.)             Neither parent

appealed the trial court’s May 23, 2016 adjudicatory order.

      Father was subsequently released from prison on June 20, 2016, and

has been minimally involved in Child’s life since that time.        The record

reflects that Father attended supervised visits with Child until September 3,

2016, but often showed up late and demonstrated poor parenting skills.

(Notes of testimony, 9/1/16 at 19-20, 29.)      Since her discharge from the

hospital, Child has resided in the same foster home as W.R.B., and her


2
  On January 27, 2017, a panel of this court affirmed the involuntary
termination of Father’s parental rights to W.R.B., pursuant to 23 Pa.C.S.A.
§§ 2511(a)(2) and (b), and dismissed Mother’s appeal as moot. See In Re:
W.R.B.,       A.3d     , 2017 WL 384121 (Pa.Super. January 27, 2017)
(unpublished memorandum).


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foster parents serve as adoptive resources for both girls.        (Permanency

Review Order, 12/21/16 at 6, ¶ 23b; Permanency Review Order, 12/21/16

at 2, ¶ 4a.)

      On September 1, 2016, the trial court conducted a fourth-month

permanency review hearing and made the following findings of fact with

respect to Father:

               [F]ather has failed to report to the Cambria County
               Parole & Probation Office since his release from
               incarceration on 6/20/16. He has not responded to
               messages left by his parole officer, Shawn Leahey,
               nor was Officer Leahey able to find [F]ather at his
               approved residence. Thus, [F]ather is in violation of
               the terms of his parole and is at risk of being
               detained.     It does not appear that [F]ather is
               engaging in his treatment at the Open Door[ drug
               and alcohol counseling], as he has been directed. If
               [F]ather is detained, he could potentially remain
               incarcerated up to his maximum date (an additional
               30 months).        [F]ather did cooperate with the
               paternity testing, which established that he is the
               biological father of D.L.B. [F]ather has attended
               supervised visits (usually showing up late) but
               demonstrates a lack of basic parenting skills.
               [F]ather was drug screened on 8/18/16 (testing
               positive for Suboxone, for which he does not have a
               prescription) and on 8/20/16 (testing positive for
               THC). It is also worth noting that [F]ather appeared
               for our 9/1/16 hearing, but when advised that his
               parole officer would be participating by telephone,
               [F]ather left the courtroom and did not return.

Permanency Review Order, 9/6/16 at 2, ¶ 3b. The trial court subsequently

terminated Father’s visits with Child on September 1, 2016.            (Id. at 8,

¶ 28.)




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     Thereafter, on December 9, 2016, CYF filed a petition to involuntarily

terminate Father’s parental rights to Child. On December 14, 2016, Father

was found to have violated the terms of parole and was re-incarcerated with

a maximum release date of September 10, 2018.          (Notes of testimony,

12/20/16 at 8, 10-11; Permanency Review Order, 12/21/16 at 1-2, ¶ 3b.)

On December 20, 2016, the trial court conducted a seventh-month

permanency review hearing and made the following additional findings with

respect to Father:

           [F]ather is not actively involved in any drug and
           alcohol treatment, nor mental health counseling. He
           needs to complete 100 hours of community service
           as part of his conditions of parole. He has not
           maintained any contact with his children, [CYF] or
           any service provider. While he was out on parole,
           [CYF] had great difficulty in contacting him. The last
           time [F]ather initiated contact with the Agency was
           in mid-March[] 2016.

Permanency Review Order, 12/21/16 at 2, ¶ 3b.

     On January 11, 2017, the trial court conducted a termination hearing

with respect to Child.   During this hearing, the trial court granted CYF’s

request to incorporate the testimony from the aforementioned dependency

proceedings for Child and W.R.B. into the record.      (Notes of testimony,

1/11/17 at 5-6.)     That same day, the trial court entered an order

involuntarily terminating Father’s parental rights to Child, pursuant to

Sections 2511(a)(1), (2), (5), and (b). On January 24, 2017, Father filed a

timely notice of appeal to this court. That same day, Father filed a concise



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statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).

On February 21, 2017, the trial court filed its Rule 1925(a) opinion.

      On appeal, Father raises the following issues for our review:

            I.     WHETHER THE EVIDENCE WAS SUFFICIENT TO
                   SUPPORT TERMINATION ON GROUNDS OF
                   ABANDONMENT?

            II.    WHETHER THE EVIDENCE WAS SUFFICIENT TO
                   SUPPORT TERMINATION ON GROUNDS OF
                   INCAPACITY?

            III.   WHETHER 23 PA.C.S.A. § 2511(A)(5) APPLIES
                   TO A PARENT WHO WAS INCARCERATED AT
                   THE TIME OF REMOVAL OF HIS CHILD?

Father’s brief at 5.

      In matters involving involuntary termination of parental rights, our

standard of review is as follows:

                    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 internal quotation

marks omitted). “The trial court is free to believe all, part, or none of the


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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) (citation omitted). “[I]f competent evidence supports the

trial court’s findings, we will affirm even if the record could also support the

opposite result.” In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super.

2003) (citation omitted).

      The termination of parental rights is guided by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis of the grounds for termination followed by the needs and welfare of

the child.

             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 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).         We

have defined clear and convincing evidence as that which is so “clear, direct,

weighty and convincing as to enable the trier of fact to come to a clear


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conviction, without hesitance, of the truth of the precise facts in issue.”

In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (citation and

quotation marks omitted).

     In this case, the trial court terminated Father’s parental rights

pursuant to Sections 2511(a)(1), (2), (5), 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:

                 (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 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


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                        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.

                 ....

           (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)(1), (2), (5), and (b). We need only agree with the

trial court as to any one subsection of Section 2511(a), in addition to

Section 2511(b), to affirm an order terminating parental rights. In re M.M.,

106 A.3d 114, 117 (Pa.Super. 2014).

     Instantly, we analyze the trial court’s decision to terminate under

Section 2511(a)(2) and (b).


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                     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 causes of the incapacity,
              abuse, neglect or refusal cannot or will not be
              remedied.

                    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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015)

(citations, internal quotation marks, and indentation omitted).

      Here, we find that there was ample evidence to justify the trial court’s

termination     of   Father’s   parental     rights   to   Child,   pursuant    to

Section 2511(a)(2).     As discussed, Child has been in a pre-adoptive foster

home for the duration of her life, and Father has never had custody of Child.

But for a few supervised visits, Father has had virtually no contact or

involvement in Child’s life. Father has a lengthy criminal history and at the

time of Child’s birth was incarcerated until his release in June 2016.         The

record further reflects that Father has consistently violated the terms of his

parole, which ultimately resulted in his re-incarceration less than one month

prior to the termination hearing, with a maximum release date of

September 10, 2018.         There is also very little evidence that Father

attempted to establish a parental relationship with Child while incarcerated;


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Father did not contact CYF to inquire about Child and never sent any letters

or gifts to Child.

      The     evidence    further   establishes   that    “incapacity”   under

Section 2511(a)(2) exists given that Father has failed to demonstrate a

concrete desire or ability to remedy the problems that led to Child’s

placement.     Father has failed to cooperate with the services provided by

CYF, did not actively participate in drug or alcohol treatment, and did not

complete mental health counseling. Moreover, Father failed to establish any

stability in his life with regard to housing or employment.      Based on the

foregoing, we agree with the trial court that there exists competent evidence

of record to justify the termination of Father’s parental rights to Child

pursuant to Section 2511(a)(2).

      Next,     we   consider   whether    termination   was   proper    under

Section 2511(b).     With regard to Section 2511(b), our supreme court has

stated as follows:

              [I]f the grounds for termination under subsection (a)
              are met, a court “shall give primary consideration to
              the developmental, physical and emotional needs
              and welfare of the child.” 23 Pa.C.S.[A.] § 2511(b).
              The emotional needs and welfare of the child have
              been properly interpreted to include [i]ntangibles
              such as love, comfort, security, and stability. . . .
              [T]his Court held that the determination of the
              child’s “needs and welfare” requires consideration of
              the emotional bonds between the parent and child.
              The “utmost attention” should be paid to discerning
              the effect on the child of permanently severing the
              parental bond.      However, as discussed below,



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              evaluation of a child’s bonds is not always an easy
              task.

In re T.S.M., 71 A.3d at 267 (internal case citations omitted). “[I]n cases

where there is no evidence of a bond between a parent and child, it is

reasonable to infer that no bond exists.           Accordingly, the extent of the

bond-effect analysis necessarily depends on the circumstances of the

particular case.”     In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super.

2010) (citations omitted).       Additionally, when evaluating a parental bond,

“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,

1121 (Pa.Super. 2010) (citations omitted).

         In concluding that the termination of Father’s parental rights best

served the needs and welfare of Child, the trial court emphasized that it was

clearly in Child’s best interest to move forward with her adoption by her

foster parents.      The trial court noted that Child has resided alongside her

sister in a pre-adoptive foster home since shortly after her birth and that

“[her] needs are being met” and that she is “loved and cared for” by her

foster    parents.      (Trial   court   1925(a)   opinion,   2/21/17   at   13-14.)

Lesa Ramper, a caseworker for CYF who has been involved with this case

since shortly before Child’s birth, testified at the termination hearing that

Child seemed very comfortable in the pre-adoptive home and that Child’s

foster parents were very attentive to her and a viable adoptive resource.


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(Notes of testimony, 1/11/17 at 6, 8-9.) Additionally, Child’s foster mother

testified that Child was doing very well developmentally; was “cognitively,

physically, [and] developmentally on track for her age[;]” and that W.R.B.

was very nurturing with Child and enjoyed helping with her sister. (Notes of

testimony, 12/20/16 at 35-36.) Child’s foster mother further confirmed that

she and her husband were an adoptive resource for both Child and W.R.B.

(Id. at 39-40.)

      This court has long recognized that “[a] child’s life, happiness and

vitality simply cannot be put on hold until the parent finds it convenient to

perform parental duties.” In the Matter of the Adoption of A.M.B., 812

A.2d 659, 675 (Pa.Super. 2002).      Our standard of review requires us to

accept the trial court’s findings of fact and credibility determinations where,

as here, they are supported by the record. See In re T.S.M., 71 A.3d at

267. Accordingly, we decline to reweigh the evidence and reassess witness

credibility.

      As a final matter, Father, in his reply brief, cites to our supreme

court’s recent decision in In re L.B.M., 2017 Pa. LEXIS 680 (Pa. March 28,

2017), wherein the court held that 23 Pa.C.S.A § 2313(a) requires the trial

court to appoint counsel for a child in a termination of parental rights

(“TPR”) case, and that the failure to do so is structural and can never be

harmless. (See Father’s reply brief at 1-2.) Father posits that the guardian

ad litem (“GAL”) in this case, Attorney Tyler Rowles, at all times



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represented Child as GAL and not as appointed counsel.                        In response to

Father’s reply brief, CYF filed a motion to strike Father’s reply brief on

April 27, 2017.

      As a point of information, Justice Wecht’s opinion in L.B.M states that

the trial court is required to appoint a separate, independent attorney to

represent a child’s legal interests even when the child’s GAL, who is

appointed    to   represent   the    child’s        best   interests,    is     an   attorney.

Justice Wecht would hold that the interests are distinct and require separate

representation.     While Justice Wecht, joined by Justices Donohue and

Dougherty, sought to so hold, four members of the court, Chief Justice

Saylor and Justices Baer, Todd, and Mundy disagreed in different concurring

and dissenting opinions with that part of the lead opinion’s holding.

Specifically, while the other justices agreed that the appointment of counsel

for the child is required in all TPR cases and that the failure to do so by the

trial court is a structural error, they did not join that part of Justice Wecht’s

opinion which sought to hold that the GAL may never serve as counsel for

the child. Rather, such separate representation would be required only if the

child’s best interests and legal interests were somehow in conflict. As our

decision    discusses,   Child’s    best     interests     and   legal        interests   were

unquestionably well represented by Attorney Rowles in this case and such

interests were never in conflict. Accordingly, we decline Father’s request to




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remand this case for the appointment of additional counsel for Child. CYF’s

motion to strike Father’s reply brief, in turn, is denied as moot.

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

its discretion by involuntarily terminating Father’s parental rights to Child

pursuant to Section 2511(a)(2) and (b).           Accordingly, we affirm the

January 11, 2017 order of the trial court.

      Order affirmed. Motion to strike Father’s reply brief denied as moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/15/2017




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