J-S62042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: B.H.                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                                               :
                                               :
    APPEAL OF: C.L., FATHER                    :   No. 788 MDA 2017

                    Appeal from the Order Entered April 3, 2017
                  in the Court of Common Pleas of Mifflin County
                       Orphans’ Court at No(s): 11 of 2016

BEFORE:      STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                       FILED OCTOBER 17, 2017

        C.L. (Father) appeals from the order entered April 3, 2017, in the

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

parental rights to his minor son, B.H., born in March 2008.1 We affirm.

        We summarize the relevant factual and procedural history of this

matter as follows. Child entered foster care on June 3, 2015, after Mother

informed Mifflin County Social Services Agency (the Agency) that she was

unable to care for Child and his half-brother. N.T., 12/12/2016, at 62. Child

was adjudicated dependent by order dated June 22, 2015.               Petitioner’s

Exhibit B.H. - 1 (Order of Adjudication – Child Dependent).           The record

reveals that Child and Father have never met in person, due to Father’s


____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1 The order also terminated the parental rights of Child’s mother, E.H.
(Mother). Mother did not file a brief in connection with this appeal, nor did
she file a separate appeal.
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frequent incarcerations. N.T., 12/12/2016, at 21, 79. At the time Child was

adjudicated dependent, Father was incarcerated at Forrest City Medium

Federal Prison in Arkansas.        Id. at 78.    Father was released to a halfway

house on July 5, 2015.             Id.     However, Father was incarcerated at

Lackawanna County Prison in Pennsylvania shortly thereafter, on August 11,

2015.     Id.     Father was released on November 1, 2015, only to be

incarcerated again on November 18, 2015. Id.

        On September 27, 2016, the Agency filed a petition to terminate

involuntarily Father’s parental rights to Child. The orphans’ court conducted

a termination hearing on December 12, 2016.             Following the hearing, on

April 3, 2017, the court entered an order terminating Father’s parental

rights.2 Father timely filed a notice of appeal on April 28, 2017, and filed a

____________________________________________


2 It appears that the orphans’ court waited to enter its termination order
until it could enter a single order terminating both Father’s and Mother’s
parental rights at the same time. Mother initially executed a consent to
adoption form on December 12, 2016. However, Mother later filed a petition
to revoke her consent on February 17, 2017, which the court granted on
February 22, 2017. The court then scheduled an additional termination
hearing as to Mother only on March 24, 2017.

 Prior to the hearing, on March 22, 2017, the Agency filed a motion to
supplement the record with updated information regarding the location and
duration of Father’s current incarceration. The orphans’ court entered an
order indicating that it would consider the motion at the March 24, 2017
hearing. It is not clear from the record whether the court ultimately granted
or denied the Agency’s motion, because Father did not request that the
March 24, 2017 hearing be transcribed, and because the court did not
address the motion in its opinion or enter a subsequent order disposing of
the motion.



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concise statement of errors complained of on appeal on May 2, 2017.3

Father asks this Court to review whether the record contains competent

evidence to support the orphans’ court’s determination that the termination

of Father’s parental rights was warranted. Father’s Brief at 5.

       We address this issue mindful of our standard of review.

       The standard of review in termination of parental rights cases
       requires appellate courts to accept the findings of fact and
       credibility determinations of the trial court if they are supported
       by the record. If the factual findings are supported, appellate
       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.

____________________________________________


3  Father violated Pa.R.A.P. 1925(a)(2)(i) by failing to file a concise
statement of errors complained of on appeal at the same time as his notice
of appeal. We have accepted Father’s concise statement pursuant to In re
K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) (holding that the appellant’s
failure to comply strictly with Pa.R.A.P. 1925(a)(2)(i) did not warrant waiver
of her claims, as there was no prejudice to any party).



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       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 [subs]ection 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 [subs]ection
       2511(b): determination of the needs and welfare of the child
       under the standard of best interests of the child. One major
       aspect of the needs and welfare analysis concerns the nature
       and status of the emotional bond between parent and child, with
       close attention paid to the effect on the child of permanently
       severing any such bond.

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

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

pursuant to subsections 2511(a)(2), (5), (8), and (b).4 We need only agree

with the court as to any one subsection of 2511(a) in order to affirm. 5 In re
____________________________________________


4 Father makes no effort to challenge the termination of his parental rights
pursuant to subsection 2511(b) in the argument section of his brief.
Therefore, we conclude that Father waived any challenge to subsection
2511(b), and we focus solely on subscection 2511(a).           See In re
M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017) (holding that the
appellant waived any challenge to subsections 2511(a)(2) and (5) by failing
to develop an argument in her brief, and by conceding that the agency
presented clear and convincing evidence).

5 We note that the orphans’ court erred by concluding that Father’s parental
rights could be terminated under subsections (a)(5) and (8). Both of these
subsections require that the subject child has “been removed from the care
of the parent by the court or under a voluntary agreement with an agency”
in order to be applicable. 23 Pa.C.S. § 2511(a)(5), (8). Because Child was
never in Father’s care, and therefore was not removed from Father’s care,
his parental rights cannot be terminated under those subsections. See In
re C.S., 761 A.2d 1197, 1200 (Pa. Super. 2000) (en banc) (concluding that
termination was inappropriate under subsections 2511(a)(5) and (8)
“because the record reflects that C.S. was never in [the a]ppellant’s care
and, therefore, could not have been removed from his care”).



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B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we analyze

the court’s decision to terminate under subsection 2511(a)(2), which

provides 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.

23 Pa.C.S. § 2511(a)(2).

      In order to terminate parental rights pursuant to 23 Pa.C.S.[]
      § 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.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted).   “The grounds for termination due to parental incapacity that

cannot be remedied are not limited to affirmative misconduct.         To the

contrary, those grounds may include acts of refusal as well as incapacity to

perform parental duties.”    In re A.L.D., 797 A.2d 326, 337 (Pa. Super.

2002) (citations omitted).




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       Instantly, the orphans’ court found that Father is incapable of

parenting Child, and that Father cannot remedy his parental incapacity in a

timely manner.      Orphans’ Court Opinion, 4/3/2017, at 9.              The court

observed that Father has a lengthy history of criminal activity and

incarcerations. Id. The court further noted that Father has never met Child

in person, and that Father was prevented from visiting with Child because

his behaviors while incarcerated caused him to be placed in restricted

housing. Id. at 8-9.

       Father argues that the orphans’ court erred by terminating his parental

rights based solely on his incarceration.         Father’s Brief at 8-14.       Father

contends that his incarceration prevented him from complying with the

Agency’s child permanency plan, but that he utilized what limited resources

were   available   to   him   to   maintain   a   relationship   with   Child    while

incarcerated. Id. at 8, 11.

       Our review of the record supports the findings of the orphans’ court.

During the termination hearing, the court heard the testimony of Mother.

Mother testified that Father and Child have never met in person.                 N.T.,

12/12/2016, at 21. However, Father made a consistent effort to call her and

send cards to Child from prison. Id. at 12, 21-23. Mother recalled that she

moved to Seattle in 2009, when Child was about a year old. Id. at 23. At

that time, Mother told Father that he should not call her anymore or write as

often, because she was in a relationship with another man.               Id. at 22.




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Nonetheless, Father continued to send cards or letters to Child about every

three months. Id.

       The orphans’ court also heard the testimony of Agency caseworker,

and Assistant Administrator, Nicole Patkalitsky. Ms. Patkalitsky testified that

Father has a lengthy history of criminal activity, substance abuse,

incarceration,    unstable     housing,    financial   instability,   and   inability   to

demonstrate proper parenting. Id. at 77. Ms. Patkalitsky detailed Father’s

history of incarcerations as follows.

       He was incarcerated on August 26th of 2004 to May 5th of -- to
       May 12th of 2005 at the county jail. He was then released until
       August 9th of 2006 and was in county jail until August 11th of
       2006. On August 11th of 2006 he was then transferred to state
       prison until March 1st of 2007. July 25th of 2008 he was sent to
       Dauphin County Prison. He was then extradited back to New
       Jersey and went to Forrest City Medium Federal Prison on May
       8th of 2009. On July 5th of 2015 he was released from For[r]est
       City and moved into a half-way house in Scranton. Then on
       August 11th of 2015 he went back to Lackawanna county prison.
       He was released from there on November 1st and then was re-
       incarcerated on November 18th of 2015. And that is where he
       con -- that’s where he still is. And he was just sentenced to 14
       to 36 months in state prison.

                                           ***

       . . . . And I believe after he goes to -- after he does his recent
       [s]entence there’s still a federal detainer that he could be then
       transferred to federal prison.

Id. at 77-78.6

____________________________________________


6 Father’s most recent incarceration is the result of his guilty plea to
possession with intent to deliver a controlled substance. Petitioner’s Exhibit
(Footnote Continued Next Page)



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      Ms. Patkalitsky further testified that the Agency attempted to provide

Father with services during his brief release from incarceration in November

2015. Id. at 79. However, Father’s return to incarceration prevented him

from participating in services. Id. at 79-80. Ms. Patkalitsky explained that

she spoke with Father’s prison counselor, who informed her that Father is

“currently classified as special handling violent,” and that he is not permitted

to participate in services, visits, or phone calls. Id. at 80. Father did not

have any in-person contact with Child during his dependency.         Id. at 79.

Moreover, while Father sent letters to Child during his dependency, the

letters were not given to Child due to the recommendations of Child’s

therapist. Id. at 98.

      Thus, the record confirms that Father is incapable of parenting Child,

and that Father cannot remedy his parental incapacity. The record reveals

that Father has been incarcerated almost continuously since 2004.         When

Father was released from incarceration in July 2015, he immediately began

committing new crimes and was incarcerated again. Father has never acted

as a parent for Child at any point in his life, and it is clear that Father will

not be able to act as Child’s parent at any point in the foreseeable future.

Indeed, Child is now nine and a half years old, and has never even met


(Footnote Continued) _______________________

R.H. – 4 (Mifflin County Secure Court Summary). We note that Petitioner’s
Exhibit R.H. – 4 is mislabeled, as R.H. is Child’s half-brother, whose father is
not Father.



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Father. As this Court has stated, “a child’s life cannot be held in abeyance

while a parent attempts to attain the maturity necessary to assume

parenting responsibilities.    The court cannot and will not subordinate

indefinitely a child’s need for permanence and stability to a parent’s claims

of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d

502, 513 (Pa. Super. 2006).

      In reaching this decision, we stress that our Supreme Court has

clarified the extent to which an orphans’ court may rely upon a parent’s

incarceration when terminating parental rights. In re Adoption of S.P., 47

A.3d 817 (Pa. 2012).      It is now settled that “a parent’s incarceration is

relevant to the [sub]section (a)(2) analysis and, depending on the

circumstances of the case, it may be dispositive of a parent’s ability to

provide the ‘essential parental care, control or subsistence’ that the section

contemplates.”     In re A.D., 93 A.3d 888, 897 (Pa. Super. 2014) (citation

omitted). Contrary to Father’s argument on appeal, the orphans’ court was

well within its discretion when it relied on Father’s repeated periods of

incarceration, as well as his apparent incorrigibility, as its principal reasons

for terminating his parental rights.    In re Adoption of W.J.R., 952 A.2d

680, 687 (Pa. Super. 2008) (affirming trial court’s determination that the

father’s “repeated pattern of criminal activity and his failure to comply with

his FSP goals satisfies the requisites of incapacity, abuse, neglect or refusal

of the parent”).




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      Based on the foregoing, we conclude that the orphans’ court did not

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

involuntarily. Therefore, we affirm the court’s April 3, 2017 order.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2017




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