J-A34039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: D.H.-W.                                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: J.S., JR.

                                                       No. 1294 MDA 2015


                     Appeal from the Decree June 22, 2015
               In the Court of Common Pleas of Lycoming County
                         Orphans’ Court at No(s): 6466


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED JANUARY 15, 2016

       Appellant J.S., Jr. (“Father”) appeals from the decree entered in the

Lycoming County Court of Common Pleas, which terminated his parental

rights to D.H.-W. (born February 4, 2014) (“Child”).1 We affirm.

       The trial court set forth the relevant facts of this appeal as follows:

          The court entered an order [for] emergency protective
          custody on February 6, 2014. The allegations which led to
          emergency protective custody centered around Mother’s
          past agency involvement, including the termination of
          parental rights of four of her children, Mother’s criminal
          sentencing order prohibiting her from caring for children,
          and the fact that the alleged biological father,[2] [Father],



____________________________________________


1
 The decree also terminated the parental rights of S.H. (“Mother”), who did
not appeal.

(Footnote Continued Next Page)
J-A34039-15


          was under the supervision of the Adult Probation Office. A
          shelter care hearing was held February 7, 2014. At the
          time of the shelter care hearing, the court ordered [Father]
          to undergo a paternity test to determine if he was [Child’s]
          natural father. All parties waived the 10 day requirement
          of the dependency hearing.

          The Child was adjudicated dependent on March 10, 2014.
          At the time of the hearing, it was confirmed that [Father]
          was [Child’s] biological father. Mother and Father were
          living together at the time of the dependency hearing. Due
          to Mother’s prior history of abuse and neglect, which led to
          the termination of parental rights as to four of her
          children, the court determined [Child] to be without proper
          parental care or control in Mother’s care. The court was
          concerned that [Child] would be without proper parental
          care and control in Father’s home. Specifically, the court
          was concerned about Father meeting [Child’s] basic needs
          but felt those issues could resolve through coaching and
          learning parenting skills. The court found that Father did
          not have the protective capacity to protect Child from
          Mother. Father candidly admitted to this fact. The court
          was concerned with both parents[’] anger issues and
          inability to control their frustration. Father was strongly
          urged to cooperate with the Agency. The court found
          aggravated circumstances as to Mother. [Child] remained
          placed in the kinship home.

          A permanency review hearing was held on April 1, 2014.
          At that time, the court reaffirmed dependency of [Child],
          and [Child] remained in kinship care. The court found that
          during this review period, Mother became incarcerated for
          assaulting Father. Mother’s visits were suspended. The
          court found Mother would be a grave threat to [C]hild if
          visitation were to continue. Father made moderate
          progress towards alleviating the circumstance[s] which led
          to placement. Father was consistent in his visits and
                       _______________________
(Footnote Continued)
2
  When Child was born, Mother was married to W.H., not Father. A
subsequent paternity action revealed Father was the biological father of
Child.




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J-A34039-15


       growing more comfortable with caring for his child. The
       Agency reported Father was cooperative and that they had
       seen considerable improvement. Father was ordered to
       work with Outreach Services to help with his financial and
       parenting responsibilities.

       A permanency review hearing was held on July 14, 2014.
       Dependency of [Child] was reaffirmed, and [Child]
       remained in kinship care. Mother remained incarcerated.
       The court found Father made minimal progress toward
       alleviating  the     circumstances   [that]  necessitated
       placement. Father did attend almost all of his visits and
       provided appropriate and necessary items. Father
       continued to struggle with learning parenting skills and
       was making slow progress. The court directed the Agency
       to    work   closely    with  Expectations  for   Women
       [(“Expectations”)], the provider of Father’s parenting
       classes. The court was concerned with Father’s reluctance
       to take Agency advice.

       A permanency review hearing was held on October 6,
       2014. Dependency of [Child] was reaffirmed, and [Child]
       remained in kinship care. Mother continued to be
       incarcerated. Father continued in his same residence as
       the time of the initial proceedings, despite the financial
       difficulties of his sole income being that of Social Security
       Disability. The court found Father made significant gains
       during this review period. Father was working with the
       Agency Outreach Worker and [Expectations]. The court
       found Father was unable to care for Child on his own,
       especially as [Child’s] needs change. The Agency intended
       to increase Father’s visitation and expand visits into his
       home, but the visits were to remain observed.

       A permanency review hearing was held on January 7,
       2015. Dependency of [Child] was reaffirmed, and [Child]
       remained in kinship care. Mother remained incarcerated.
       The court found that Father was minimally compliant in his
       effort to alleviate the circumstance[s] [that] led to
       placement in that he remained unable to provide
       appropriate care for Child. The court directed an evaluation
       to assess Father’s readiness to assume responsibility for
       [Child]. The court notes that the issue was Father’s
       inability to care for [Child].

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J-A34039-15



       On March 24, 2015, the Agency filed a petition to
       involuntarily terminate the parental rights of both Mother
       and Father in regard to [Child]….

       A permanency review hearing was held on April 8, 2015.
       Dependency of [Child] was reaffirmed, and [Child]
       remained in kinship care. Mother remained incarcerated.
       Father continued to attend visits on a regular basis,
       attended counseling, and took his prescribed medicine.
       Father also resumed attending parenting classes at
       Expectations. The court was unable to determine whether
       Father had made any progress in his ability to care for
       [Child] on his own.

       Visitation Coordinator, Harvey Edwards, has been
       observing Father’s visits with [Child] since February 11,
       2014. The visits occur three days per week and last four
       hours each visit. Prior to Mother’s incarceration, Mother
       participated in supervised visitation. In the period of
       January 2015, until May 2015, Father attended 46 of 52
       scheduled visits. Mr. Edwards observed that when visits
       began last year, Father just watched [Child]. Mr. Edwards
       had to encourage Father to interact with Child. Mr.
       Edwards reported that Father still struggles to this date.
       Mr. Edwards continuously monitors Father because, at
       times, Father gets angry. Father gets irritated when Child
       does not listen to him. Father speaks in a harsh and
       elevated tone to Child. Mr. Edwards testified to a lack of
       progress in Father’s ability to parent. He testified that
       Father cannot do things independently. Mr. Edwards
       described one specific occasion when Father failed to
       address [Child’s] unhappiness at a restaurant. Despite Mr.
       Edwards’ prompts, Father continued eating, and Mr.
       Edwards was forced to pick up [Child] and address his
       needs. In a separate incident, Father did not notice [Child]
       was ill and had a fever. Mr. Edwards felt [Child] was warm
       and intervened. [Child] is always happy to be returned to
       his kinship care providers at the end of the visits with
       Father.

       Crystal Minnier is the ongoing caseworker in this matter.
       Ms. Minnier was involved in the cases regarding Mother’s
       other children. Ms. Minnier testified that Mother has had no

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J-A34039-15


       contact with Child since she became incarcerated. Mother
       has written letters to Ms. Minnier regarding Child. Ms.
       Minnier testified that Father has maintained the same
       residence since prior to the Agency’s involvement. Father
       and Mother began parenting classes with Expectations
       prior to Agency involvement. Ms. Minnier encouraged
       Father to seek services for [the] intellectually disabled.
       Father was not interested as he had those services in high
       school and did not see a need. Father does not wish to
       seek employment. Ms. Minnier believes Father has
       exhausted any resource available to him. Father is
       currently in individual counseling for anger management
       and [is] medication compliant (pursuant to the terms of
       the Adult Probation Office). Despite diligent search efforts,
       family resources for Father have not been located.

       Ms. Minnier has not seen progress in Father’s ability to
       care for [Child]. Father continues to have the inappropriate
       expectation that his very young son knows what he is
       saying. Father’s frustration and anger continues, and
       Agency staff is always present to intervene. For example,
       Father expects Child to remain still when told and believes
       [Child] is deliberately disobeying him. Ms. Minnier believes
       Father loves his son. However, Ms. Minnier does not
       believe Father will ever be able to develop the skills
       necessary to care for [C]hild on a full[-]time basis. Ms.
       Minnier described that, despite over a year of regular
       visits, she remains concerned [Child] will be harmed in
       Father’s care.

       In [Child’s] resource home, he resides with two of his
       siblings. Mother’s rights had previously been terminated to
       the two siblings.

       Bruce Anderson is a licensed psychologist who evaluated
       Father and testified at the time of the hearing. Mr.
       Anderson reported that Father has an intellectual limitation
       and low I.Q. Father is concrete in his thinking and able to
       comply with a simple instruction. Mr. Anderson found that
       Father is unable to comprehend [Child’s] developmental
       changes. Mr. Anderson found that Father would not be
       able to care for Child on his own. He also found that Child
       would not be safe with Father full time. Further, Mr.
       Anderson testified that Father would never get to the point

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J-A34039-15


        where he could provide full time care. Mr. Anderson found
        that while Father is strongly bonded to Child, Child is
        strongly bonded to the resource parents.

        Judith Jones testified as Child’s court[-]appointed special
        advocate. Ms. Jones was present for at least ten visits with
        Child and Father and observed at those visits that Child
        lures Father into interacting with him, rather than Father
        engaging the interaction.

        Both [r]esource parents testified to their relationship with
        Child and willingness to assume role of parent.

        Loretta Clark, Father’s adult probation officer, confirmed
        that Father was on probation as a result of a sentence for
        two counts of aggravated assault. Father meets with the
        probation office every other month and has been
        compliant. Father is likely to remain on probation until
        2017. Ms. Clark testified that the adult probation office’s
        conditions that Father attend counseling and remain on
        medication were to address his anger issues.

        Father’s attorney offered no evidence at the time of the
        hearing. Father did not testify.

        Mother testified that she expects to be released in the
        summer of 2015 as she has already surpassed her
        minimum sentence date. Mother has completed a violence
        prevention program. Mother does not wish for her rights to
        be terminated. Mother was not sure if the term of her
        sentence which required her not to care for children would
        remain a restriction after her release.

Trial Court Opinion, filed June 22, 2015, at 2-8 (some capitalization

omitted).




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J-A34039-15


       On June 22, 2015, the trial court issued a decree that involuntarily

terminated the parental rights of Mother and Father.          On July 17, 2015,

Father timely filed a notice of appeal.3

       Father raises the following question for our review:

          WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS
          SUFFICIENT TO SUPPORT THE COURT’S TERMINATION OF
          [FATHER’S] PARENTAL RIGHTS UNDER 23 PA.C.S.[] §
          2511(A)(5) AND (8) ON THE BASIS THAT “THE
          CONDITIONS WHICH LED TO THE ORIGINAL REMOVAL OF
          THE CHILD STILL CONTINUE TO EXIST TO DATE” WHERE
          AT NO POINT IN [CHILD’S] LIFE HAD [FATHER] BEEN
          GIVEN   THE   OPPORTUNITY   TO   TAKE   ON  FULL
          RESPONSIBILITY FOR [CHILD] AND EVIDENCE OF
          [FATHER’S] INCAPACITY OR INABILITY TO PROPERLY
          CARE FOR [CHILD] WAS PURELY SPECULATIVE IN
          NATURE?

Father’s Brief at 7.

       Father argues that, because he was never given an opportunity to care

for Child on his own, the evidence presented at trial was insufficient to

establish that Father continued to fail to provide for Child pursuant to 23

Pa.C.S. § 2511(a)(5) and (8). We disagree.

       Our scope of review in an appeal terminating parental rights is

comprehensive:

          [W]e consider all the evidence presented as well as the
          trial court’s factual findings and legal conclusions.
____________________________________________


3
  On July 23, 2015, the trial court ordered Father to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), because he
had not filed one with his appeal pursuant to Pa.R.A.P. 1925(a)(2). Father
complied with the court’s request on July 28, 2015.



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J-A34039-15


         However, our standard of review is narrow: we will reverse
         the trial court’s order only if we conclude that the trial
         court abused its discretion, made an error of law, or lacked
         competent evidence to support its findings.        The trial
         judge’s decision is entitled to the same deference as a jury
         verdict.

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


         Where the hearing court’s findings are supported by
         competent evidence of record, we must affirm the hearing
         court even though the record could support an opposite
         result.
         We are bound by the findings of the trial court which have
         adequate support in the record so long as the findings do
         not evidence capricious disregard for competent and
         credible evidence. The trial 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. Though we are not bound by the
         trial court’s inferences and deductions, we may reject its
         conclusions only if they involve errors of law or are clearly
         unreasonable in light of the trial court’s sustainable
         findings.

In re M.G., 855 A.2d 68, 73-74 (Pa.Super.2004) (citations omitted).

      “In a proceeding to involuntarily terminate parental rights, the burden

of proof is upon the party seeking termination to establish by clear and

convincing evidence the existence of grounds for doing so. The 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.” In

re T.F., 847 A.2d 738, 742 (Pa.Super.2004) (internal quotations and citation

omitted).



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J-A34039-15


      Here, the trial court found grounds for termination based on

Subsections (a)(5) and (8) in addition to Subsection (b) of 23 Pa.C.S. §

2511, which governs requests to terminate a natural parent’s parental

rights, and provides, in pertinent part:

         § 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:

                                  *    *    *

            (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 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.

                                  *    *    *

            (8) The child has been removed from the care of the
            parent by the court or under a voluntary agreement
            with an agency, 12 months or more have elapsed
            from the date of removal or placement, the
            conditions which led to the removal or placement of
            the child continue to exist and termination of
            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

                                      -9-
J-A34039-15


          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.

       In order to affirm the termination of parental rights, this Court need

only agree with any one subsection of 23 Pa.C.S. § 2511(a), in addition to §

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

appeal denied, 863 A.2d 1141 (Pa.2004).

       Here, the court properly first looked to 23 Pa.C.S. § 2511(a) for the

basis of involuntary termination and found that grounds for termination

existed under subsections (5) and (8). Specifically, the trial court found that

Child had been removed from his parents for 16 months. The court found

that the conditions that led to the removal from Father, namely Father’s

intellectual difficulties, continued to exist.     The court found that, although

Father had improved his parenting skills, he was unable to adjust his

parenting to the changing developmental needs of Child and that terminating

his and Mother’s rights would best serve the needs and welfare of Child.4


____________________________________________


4
  The trial court also noted that, although Father made a compelling
argument that he had not been given an opportunity to take full
(Footnote Continued Next Page)


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J-A34039-15


      The trial court then considered other factors pursuant to 23 Pa.C.S. §

2511(b) and found Child was strongly bonded with his resource family, with

whom he had resided since birth, and that the termination of both Mother

and Father’s parental rights would not destroy an existing, necessary and

beneficial relationship.

      The hearing court’s findings are supported by competent evidence of

record. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/2016




                       _______________________
(Footnote Continued)

responsibility for Child, his argument failed to negate the requirements of
the statute.



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