J-S46001-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: B.S., A MINOR                     :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                                         :
                                         :
APPEAL OF: S.S.                          :      No. 280 MDA 2014


            Appeal from the Order Entered January 14, 2014,
            In the Court of Common Pleas of Lackawanna County,
                                             -61 2013.


BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ

MEMORANDUM BY SHOGAN, J.:                          FILED AUGUST 01, 2014

      Father, S.S., appeals from the order entered on January 14, 2014,

that granted the petition filed by the Lackawanna County Office of Youth and




to 42 Pa.C.S.A. § 6351.1 We affirm.

      The trial court set forth the factual background and procedural history

of this appeal as follows:




1

voluntarily relinquishing her parental rights to Child. N.T., 12/13/13, at 6.
During the December 13, 2013 termination hearing, which Mother did not
attend, the trial court confirmed her consent and terminated her parental
rights to Child. N.T., 12/13/13, 10-11. At the termination hearing, the trial
cour
the court to address. N.T., 12/13/13, 12. Mother does not challenge the
termination of her parental rights to Child, nor is she a party to this appeal.
J-S46001-14



           [Child] was born [in September of 2012].               (N.T.
     12/13/2013 at pgs. 15, 46). He remained in the hospital for
     approximately one (1) month after birth to be monitored for
     symptoms of addiction an
     narcotics while pregnant. (Id. at pgs. 15, 17). While Mother
     and [Child] were both still in the hospital, Mother informed OYFS

     (Id. at pg. 44[-45]). At this time, Mother also alluded to the
     possibility that Father was working in Binghamton, NY, but did

     (Id. at pgs. 25, 43[, 45]).


     formally acknowledged paternity of [Child]. (Id. at pgs. 37, 38).
     However, although hospital staff encouraged family members to
     visit [Child] and feed him while he was in the hospital to nurture
     him and help him grow, Father only visited [Child] once during
     this time. (Id. at pgs. 15, 45 & 46).

           After being released from the hospital, on October 6, 2012,


                                   gs. (Id. at pgs. 14, 47). On
     October 22, 2012, OYFS attempted to contact Father to explore
     whether he was a placement source for [Child] by calling Father
     on the telephone, but Father never returned that phone call.
     (Id. at pgs. 45, 49).

           Over the course of the next nine (9) months, from October
     of 2012 to July of 2013, OYFS, after being unable to make
     contact with Father, engaged in an exhaustive, diligent search to
     locate him. (Id. at pgs. 15-21, 49-62). Such efforts included
     sending letters, both certified and regular mail, to multiple
     addresses where Father was thought to have been living,

     Mother and Father had previously accepted mail, leaving
     voicemail messages for Father at numerous potential phone
     numbers, using [I]nternet search engines such as Accurint to
     locate Father based on his birth date and social security number,
     and attempting to track Father through the acknowledgement
     [sic] of paternity documents that he signed. (Id.). In July of
     2013, OYFS learned that Father was incarcerated at the


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      Lackawanna County Prison on a parole or probation violation.
      (N.T. 12/13/2013 at pgs. 20-21).


      representative met with Father at the Lackawanna County Prison
                                                           Id. at pgs.
      20-21). Specifically, the OYFS representative informed Father
      that, because of the length of time that [Child] had been in
      foster care, OYFS was seeking to terminate his parental rights to
      [Child]. (Id. at pg. 16). In addition, the OYFS representative
      informed Father that OYFS was also seeking to terminate his
      parental rights to [Child] because he had not had any contact
      with OYFS for approximately nine (9) months, had not
      completed any of the mandatory reunification services that OYFS
      required of him, and, most importantly, had not had any contact
      with [Child] for approximately nine (9) months. (Id.). Finally,
      the OYFS representative informed Father that, under Act 101, he

      relinquished his parental rights to [Child].2 (N.T. 12/13/2013 at
      pg. 21).
            2
              Senate Bill 1360, known informally as Act 101, was
            enacted into law in 2010 by then Pennsylvania
            Governor Edward Rendell, and became effective in
            2011. Bulletin, Dept. of Pub. Welf., Off. Of Child.,
            Yth. & Fam., April 22, 2011.          Act 101, as an
            amendment to 23 Pa.C.S.A. § 2101 et seq., also
            known as the Adoption Act, provides biological
            parents who voluntarily relinquish their parental
            rights to their children the potential ability to remain

            been adopted in certain circumstances. Id.

           In response, Father refused to voluntarily relinquish his
      parental rights to [Child], but wrote to the OYFS representative
      at a later date, stating that he wished to remain a part of

      occurred.   (Id. at pgs. 16, 21).       However, Father never
      requested any sort of visitation or contact with [Child]. (Id. at
      pg. 21).

Trial Court Opinion, 4/1/14, at 1-3 (footnote in original).


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parental rights. The trial court held a hearing on the termination petition on

December 13, 2013.      At the hearing, OYFS presented the testimony of



the OYFS caseworker formerly assigned to the family prior to Ms. Sporer;

and Kellie Valvano, the OYFS paralegal who conducted the diligent search for

Father.   N.T., 12/13/13, 4-5, 43-44, 55-56.       At the conclusion of the



January 14, 2014, the trial court entered on its docket the order, dated




permanency goal to adoption pursuant to 42 Pa.C.S.A. § 6351.

      On February 14, 2014, Father timely filed a notice of appeal along with

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

1925(a)(2) and (b).2 Father raises the following issues for our review:

     A. Whether the trial court erred as a matter of law and/or
     manifestly abused its discretion in determining [OYFS] sustained

     is warranted under sections 2511(a)(1), 2511(a)(2), 2511(a)(5)
     and/or 2511(a)(8) of the Adoption Act?

     B. Even if this Court concludes [OYFS] established statutory

     the trial court nevertheless erred as a matter of law and/or


2
                             ice of appeal and concise statement are
time/date-stamped February 13, 2014.

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      manifestly abused its discretion in determining [OYFS] sustained
      its additional burden of proving the t
      parental rights is in the best interests of [Child]?
                   3



      In his first issue, Father argues that OYFS failed to establish the

statutory factors necessary to terminate his parental rights pursuant to 23

Pa.C.S.A. § 2511(a)(1), (2), (5), and/or (8) by clear and convincing

evidence.   Father initially argues that OYFS failed to sustain its burden of

proof because OYFS waited until approximately one and one-half months

                                                     t that time, OYFS did not

discuss visitation or reunification goals with Father, but rather addressed Act



      We review an appeal from the termination of parental rights pursuant

to the following standard:

            [A]ppellate courts must apply an abuse of discretion

      petition for termination of parental rights.    As in dependency


3
  We observe that Father subtly changed the language in his appellate brief
from that used in his concise statement, but we find that he sufficiently
preserved his issues for our review. Moreover, we also note that on
December 30, 2013, the trial court changed the permanency goal for Child
from reunification to adoption. N.T., 12/13/13, at 74; Trial Court Order,
12/30/13 (filed 1/14/14). Father waived any challenge to the goal change
to adoption by his failure to raise the issue in his Statement of Questions
Involved portion of his brief on appeal and in his concise statement. Krebs
v. United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa.
Super. 2006) (stating that any issue not set forth in or suggested by an

deemed waived).

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     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.,
     608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings
     are supported, appellate courts review to determine if the trial
     court made an error of law or abused its discretion. Id.; R.I.S.,
     36 A.3d [567, 572 (Pa. 2011) (plurality opinion)]. 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., 613 Pa. 371, 34 A.3d 1, 51 (Pa. 2011);
     Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 634 (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., 9 A.3d at
     1190.    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

     error of law or an abuse of discretion. In re Adoption of
     Atencio, 539 Pa. 161, 650 A.2d 1064, 1066 (1994).

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

     The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

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




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Moreover, regarding clear and convincing evidence, we have explained the

following:

      [t]he standard of clear and convincing evidence is defined as

      enable the trier of fact to come to a clear conviction, without


Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).



termination of parental rights with regard to any one subsection of section

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

Here, we focus upon section 2511(a)(2).

      Section 2511 provides, in relevant part, as follows:

      § 2511. Grounds for involuntary termination

      (a) Gener         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.

                                     ***

                                   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


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      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).

      Our Supreme Court set forth our inquiry under section 2511(a)(2) as

follows:

      As stated above, § 2511(a)(2) provides statutory grounds for
      termination of parental rights where it is demonstrated by clear

      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


            This Court has addressed          incapacity   sufficient   for
      termination under § 2511(a)(2):

           A decision to terminate parental rights, never to be made
           lightly or without a sense of compassion for the parent,
           can seldom be more difficult than when termination is
           based upon parental incapacity.           The legislature,
           however, in enacting the 1970 Adoption Act, concluded
           that a parent who is incapable of performing parental
           duties is just as parentally unfit as one who refuses to
           perform the duties.

      In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883, 891 (1986)
      (quoting In re: William L., 477 Pa. 322, 383 A.2d 1228, 1239
      (1978)).

In re Adoption of S.P., 47 A.3d at 827.

      Moreover, we have stated the following:


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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.

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

(citations omitted).

      Further, our Supreme Court instructed the following with respect to

incarcerated parents:

      [I]ncarceration is a factor, and indeed can be a determinative

      under § 2511(a)(2) where the repeated and continued incapacity
      of a parent due to incarceration has caused the child to be
      without essential parental care, control or subsistence and that
      the causes of the incapacity cannot or will not be remedied.

In re Adoption of S.P., 47 A.3d at 828.

      After re-visiting its decision in In re: R.I.S., 36 A.3d 567 (Pa. 2011),

regarding incarcerated parents, the Supreme Court stated the following:

      [W]e now definitively hold that incarceration, while not a litmus
      test for termination, can be determinative of the question of
                                                        ential parental

      confinement can be considered as highly relevant to whether

                                                              sufficient
      to provide grounds for termination pursuant to 23 Pa.C.S. §
      2511(a)(2). See e.g. Adoption of J.J.
      parent who is incapable of performing parental duties is just as
      parentally unfit as one who refuses to perform the duties       In
      re:] E.A.P., 944 A.2d [79, 85 (Pa. Super. 2008)] (holding


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     incarcerations and failure to be present for child, which caused
     child to be without essential care and subsistence for most of her

     with various prison programs).

In re Adoption of S.P., 47 A.3d at 830.

     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.

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.



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

           Next, under 23 Pa.C.S.A. § 2511(a)(2), OYFS has alleged
                                                                      ,
     or refusal has caused [Child] to be without the 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
     Father. 23 Pa.C.S.A. § 2511(a)(2). In the case at bar, [the trial
     court] finds that OYFS has again met its burden under this
     portion of the statute with respect to Father. Here, at the time
                                                                     to
     properly care for him. (N.T. 12/13/2013 at pgs. 44-46). Mother
     had no permanent residence to which [Child] could be released,
     and was still under suspicion of abusing narcotics, and Father
     was completely absent. (Id.) Thus, [Child] was without the
     essential parental care that was necessary for both his physical
     and mental well-being.       23 Pa.C.S.A. § 2511(a)(2); (N.T.
     12/13/2013 at pgs. 44-46).




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            Furthermore, as of December 13, 2013, the date of the
      TPR hearing, Father was still not prepared to properly care for
      [Child] because he was incarcerated. (N.T. 12/13/2013 at pg.
      17). Therefore, although incarceration in and of itself is not

      incarceration created a situation in which he was still not a
      placement source for [Child] at the time of the TPR hearing.
      See In Re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000)
      (holding that incarceration alone is insufficient to terminate
      parental rights).

            In addition, Father had not completed any of the
      mandatory reunification services OYFS required of him, which
      included undergoing mental health and drug and alcohol
      evaluations, as well as providing proof of a safe and stable home
      for [Child]. (Id. at pg. 16).

            Thus, the circumstances that existed at the time that
      [Child] was released from the hospital, in which he was without
      the proper parental care and control necessary for his physical
      and mental well-being, still existed at the time of the TPR
      hearing, and Father had not taken any remedial steps.

Trial Court Opinion, 4/1/14, at 6-7.    Thus, the trial court found clear and

                                                    repeated and continued

incapacity, abuse, neglect, or refusal to parent had caused Child to be

without essential parental care, control,

physical or mental well-being, and the conditions and causes of the

incapacity, abuse, neglect or refusal cannot or will not be remedied by

Father. Id. at 7.

      The evidence showed that OYFS contacted Father to offer him

parenting resources, but he did not utilize the services. The evidence also

                             continued incapacity, abuse, neglect, or refusal


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to parent

reasonable efforts to assist in his reunification with Child.



this Court to make credibility and weight determinations different from those



feelings of love and affection for a child, alone, will not preclude termination

of parental rights. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). We

stated in In re Z.P.

that [a parent] will summon the ability to handle the responsibilities of

              Id

custody and rearing of his child is converted, upon the failure to fulfill his or

                                                         have proper parenting and

fulfillment   of   his   or   her   potential   in   a   permanent,    healthy,   safe

                   In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004).

      Thus, after our careful review of the record in this matter, we discern

                              actual, credibility and weight determinations are

supported by competent evidence in the record. In re Adoption of S.P.,

47 A.3d at 826-827. The trial court properly considered the history of the

                                                                      his neglect as a

parent to Child, plus his incarceration, and determined that Father would not

remedy his failure to parent. Father cannot now shift the blame to OYFS for




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his failure to parent Child.   Accordingly, it is our conclusion that the trial

cour

sufficient, competent evidence in the record.

         In his second issue, Father argues that the trial court failed to

consider, under 42 Pa.C.S.A. § 2511(b), the effect of terminating his

parental rights on the bond he has with Child, and/or the emotional needs

and welfare of Child. Father asserts that, during the hearing, the trial court

placed great weight on the apparent lack of a bond between Father and

Child.     Father contends that the record is devoid of any evidence or




         Indeed, after we determine that the requirements of section 2511(a)

are satisfied, we proceed to review whether the requirements of subsection

(b) are satisfied.    In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.

Super. 2008) (en banc). This Court has stated that the focus in terminating

parental rights under section 2511(a) is on the parent.          Id. at 1008.

However, pursuant to section 2511(b), the focus is on the child. Id.

         In reviewing the evidence in support of termination under section

2511(b), our Supreme Court stated the following:

               [I]f the grounds for termination under subsection (a) are
                               ll give primary consideration to the
         developmental, physical and emotional needs and welfare of the




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J-S46001-14



     of   the   child   have   been   properly    interpreted
                                                         includeto
                                                              In
     re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M.,
     [620 A.2d 481, 485 (Pa. 1993)], this Court held that the

     consideration of the emotional bonds between the parent and

     effect on the child of permanently severing the parental bond.
     In re K.M., 53 A.3d at 791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

     Here, the trial court found the following:

           [U]nder the second prong of the analysis, terminating

     and welfare. 23 Pa.C.S.A. §[ ] 2511. . . (b). In the case at bar,
     this [c]ourt finds that there is no significant bond between Father
     and [Child]. The only contact that Father has had with [Child]
     was on the single occasion when Father visited [Child] shortly
     after his birth while he was still in the hospital.           (N.T.
     12/13/2013 at pg. 15). When OYFS finally made contact with
     Father after tirelessly searching for him for nine (9) months,
     Father did not request any type of visitation or contact with
     [Child]. (Id. at pg. 21). And, during the TPR hearing, which was
     the only court proceeding that Father attended throughout the
     entire course of this case, this [c]ourt observed both [Child] and
     Father, who were present in the court room, and failed to
     acknowledge or engage one another, which this [c]ourt finds as
     evidence of no appreciable bond between Father and [Child].
     (Id. at pg. 67).

            Furthermore, [Child] has been placed with [Foster Parents]
     for over a year, since shortly after his birth. (Id. at pgs. 14, 47).
     [Foster Parents] have provided a loving and nurturing home for
     [Child], where he thrives and maintains a relationship with his
     two (2) older siblings. (Id. at pgs. 14, 47, & 71). Moreover,
     [Foster Parents] are ready, willing, and able to adopt [Child] and
     make him a permanent part of their family. (Id. at [pgs. 70-71).
                                                              rental rights
     to [Child] and allowing [Foster Parents] to adopt him would
     clearly best suit his needs and well-being.


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J-S46001-14




Trial Court Opinion, 4/1/14, at 9.



developmental, physical, and emotional needs and welfare. The trial court




home for Child because of his incarceration, his refusal to perform any of the

mandatory reunification services, and his refusal to maintain significant

contact with Child. Trial Court Opinion, 4/1/14, at 8. Further, the trial court

found that there is no bond between Child and Father. Id. at 9. The trial

court

the best interests of the Child. Id. at 9-10.

        As to the bond analysis, we have stated that, in conducting a bonding

analysis, the court is not required to use expert testimony, but may rely on

the testimony of social workers and caseworkers.       In re Z.P., 994 A.2d

1108, 1121 (Pa. Super. 2010). This Court has observed that no bond worth

preserving is formed between a child and a natural parent where the child

has been in foster care f

with the natural parent is attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa.



                                                            earn appropriate

                   In re K.K.R.S., 958 A.2d 529, 534 (Pa. Super. 2008). The


                                       -15-
J-S46001-14



trial court properly found from the evidence that Father, because of his



bond with Child. Trial Court Opinion, 4/1/14, at 9.

      Additionally,    as   part   of   its    bonding    analysis,   the   trial   court

                                                                            See In re:

T.S.M., 71 A.3d at 267-268 (stating that existence of a bond attachment of

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

petition, and the court must consider whether the child has a bond with the

foster parents).      The trial court found that Child has a bond with Foster

Parents, who are pre-adoptive, and who have served as his parents since his

release from the hospital after birth. Moreover, Foster Parents have adopted



      As there is competent evidence in the record that supports the trial



and welfare, and the absence of any bond with Father, we conclude that the

trial court did not abuse its discretion as to section 2511(b).                     In re

Adoption of S.P., 47 A.3d at 826-827.                Accordingly, we affirm the order



permanency goal to adoption.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/1/2014




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