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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: S.S.J.M., A/K/A S.M.H.,              :     IN THE SUPERIOR COURT OF
A/K/A S.M.H., MINOR                         :           PENNSYLVANIA
                                            :
                                            :
APPEAL OF: T.B.                             :
                                            :     No. 775 WDA 2015

                  Appeal from the Order Entered April 17, 2015
               In the Court of Common Pleas of Allegheny County
                    Orphan’s Court No(s).: TPR 187 of 2013

BEFORE: BOWES, DONOHUE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 15, 2015

        T.B. (“Father”) appeals from the order entered April 17, 2015, in the

Allegheny County Court of Common Pleas, which involuntarily terminated his

parental rights to his minor daughter, S.S.J.M., also known as S.M.H.

(“Child”), born in April of 2012.1 We affirm.

        Child first came to the attention of the Allegheny County Office of

Children, Youth and Families (“CYF”) on June 7, 2012, when Mother filed for

a Protection From Abuse (“PFA”) order against Father. N.T., 4/14/2015, at

10. At that time, Mother did not identify Father as the father of Child. Id.

at 7. Instead, Mother claimed that her boyfriend was Child’s father. Id. On



*
    Former Justice specially assigned to the Superior Court.
1
  Child’s mother, C.M. (“Mother”), executed a consent-to-adoption form on
October 3, 2013. The orphans’ court later confirmed Mother’s consent and
terminated her parental rights. Mother is not a party to the instant appeal.
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August 21, 2012, Child was removed from Mother’s care and placed in foster

care.    Id. at 6.   Child was adjudicated dependent on September 6, 2012.

Id. at 14.

        In February of 2013, a paternity test revealed that Mother’s boyfriend

was not Child’s father.    Id. at 7.   Mother initially refused to provide the

identity of any other possible father.       Id.   However, after a “couple of

months,” Mother revealed that Father may be Child’s father. Id. On June

14, 2013, CYF sent a letter to Father at the Allegheny County Jail, where he

was incarcerated, and inquired about the possibility of his paternity. Id. at

16.     Father was released from incarceration on August 30, 2013, and

participated in a paternity test on October 30, 2013.       Id. at 19-20.   On

November 17, 2013, Father was informed that he was, in fact, Child’s father.

Id. at 22.

        On November 18, 2013, CYF filed a petition to terminate Father’s

parental rights to Child involuntarily.   A termination hearing was held on

April 14, 2015, and April 15, 2015, during which the orphans’ court heard

the testimony of CYF caseworker, Rhianna Diana; Allegheny County Drug

Testing employee, Anthony Williams; psychologist, Neil Rosenblum; and

Father. On April 17, 2015, the orphans’ court entered its order terminating

Father’s parental rights. Father timely filed a notice of appeal on May 15,

2015, along with a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).



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      Father now raises the following issues for our review.

          I. Whether the [orphans’] court committed reversible error
          in finding that [CYF] met [its] burden of proof and proved
          by clear and convincing evidence that the parental rights
          of [Father] should be terminated pursuant to 23
          Pa[.]C.S.A. [§] 2511(a) (1), (2), (5), and (8)[?]

          II. Whether the [orphans’] court committed reversible
          error in finding that [CYF] met [its] burden of proof and
          proved by clear and convincing evidence that terminating
          the parental rights of [Father] best meets the needs and
          welfare of [Child] pursuant to 23 Pa[.]C.S.A. [§] 2511
          (b)[?]

Father’s Brief at 1.

      Father argues that his initial failure to be involved in Child’s life should

not be held against him, because he was not aware that Child existed or that

he is Child’s Father.   Id. at 6-8. Father further asserts that CYF failed to

provide him with adequate reunification services and that CYF failed to

present clear and convincing evidence that he did not complete his Family

Service Plan (“FSP”) objectives. Id. at 8-16. In addition, Father contends

that it is in Child’s best interest to maintain a relationship with him, and that

terminating his parental rights would be “like a death sentence” to that

relationship. Id. at 18.

      We consider Father’s claims mindful of our well-settled 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


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            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.

            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).

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

pursuant to Sections 2511(a)(1), (2), (5), (8), and (b). We need only agree

with the orphans’ court as to any one subsection of Section 2511(a), as well

as Section 2511(b), in order to affirm.      In re B.L.W., 843 A.2d 380, 384


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(Pa. Super. 2004) (en banc).     Here, we analyze the court’s decision to

terminate under Sections 2511(a)(2) and (b), which provide 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.

                                 *    *    *

        (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. § 2511(a)(2), (b).

     We first address whether the orphans’ court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(a)(2).

        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


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          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).

        During the termination hearing, CYF caseworker, Rhianna Diana,

testified that Father has been convicted of various crimes, including simple

assault, harassment, public drunkenness, and violation of open container

laws.    N.T., 4/14/2015 (part 1), at 32.      Father has been incarcerated

numerous times.      Id. at 27-28.    Father was incarcerated from April 20,

2007, to May 3, 2007; from December 21, 2007, to December 23, 2007;

from July 21, 2009, to January 21, 2010; from July 7, 2010, to July 12,

2010; from July 29, 2011, to August 15, 2011; from September 25, 2011 to

October 20, 2011; from January 20, 2013, to August 30, 2013; and from

April 9, 2014, to June 4, 2014. Id.

        In addition, Father has had a series of PFA orders entered against him.

Id. at 52.     One PFA petition was filed on August 1, 2007, by a woman

named M.P., and a temporary PFA order was granted. Id. at 53-54; Ex. CYF

3. A woman named L.G. obtained a final PFA order dated April 26, 2007.


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N.T., 4/14/2015 (part 1), at 56. A temporary PFA order dated May 9, 2011,

was issued with respect to a woman named A.D.          Id. at 58.    A.D. later

obtained a final PFA order dated April 28, 2014. Id. A woman named T.F.

acquired a temporary PFA order against Father, dated January 9, 2012. Id.;

Ex. CYF 3.

      Ms. Diana further testified concerning Father’s FSP objectives, which

included achieving and maintaining recovering from substance abuse,

improving his relationship with Child, preventing abuse or neglect of Child,

providing and maintaining living conditions that are free from health and

safety concerns, showing an understanding of age-appropriate behavior and

expectations for Child, and stabilizing mental health problems.           N.T.,

4/14/2015 (part 2), at 28-29. With respect to substance abuse, CYF asked

Father to participate in drug and alcohol evaluations. N.T., 4/14/2015 (part

1), at 38-39. Father did not comply, and reported that he could not obtain

an evaluation because he lacked insurance, and because his application for

insurance was denied. Id. at 40-41. Father also claimed that an evaluation

would be a waste of time, because he no longer consumed alcohol or used

drugs. Id. at 40. Ms. Diana explained that not having insurance should not

have stopped Father from obtaining an evaluation, because there were

services available that could provide an evaluation for free, or used a sliding

pay scale.    Id. at 41.   Moreover, CYF was court-ordered to make sure

Father’s evaluation was paid for. N.T., 4/14/2015 (part 2), at 45.



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     Concerning Father’s parenting, Ms. Diana testified that CYF referred

Father to a parenting program.     N.T., 4/14/2015 (part 1), at 48.   Father

completed five sessions of the program before being incarcerated. Id. At

the time of the termination hearing, Father had not been able to find a

parenting program that worked with his employment schedule. Id. Father

also was asked to complete a domestic violence program.        Id. at 59-60.

Father was referred to a program, but completed only one class. Id. at 60;

N.T., 4/14/2015 (part 2), at 33.      With respect to mental health, CYF

requested that Father address his anger management issues.              N.T.,

4/14/2015 (part 1), at 52.       Father successfully completed an anger

management program. Id. at 43, 59. Concerning Father’s living conditions,

Father reported being homeless upon being released from incarceration in

August of 2013.   Id. at 44.   Father was using a drop-in center to receive

mail, and did not report to CYF where he was staying. Id. at 44-45. Father

finally obtained housing approximately two or three months prior to the

termination hearing. Id. at 44. Ms. Diana visited Father’s apartment, and it

appeared to be appropriate. N.T., 4/14/2015 (part 2), at 42.

     Finally, Ms. Diana testified concerning Father’s visitation with Child.

Father receives two supervised visits with Child per week, which began in

January of 2014.     Id. at 4-6.     Father attended his visits with Child

consistently, until January of 2015. Id. at 5. Since January 5, 2015, Father

has failed to attend six of his visits. Id. Ms. Diana noted that she has only



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seen Father and Child together for brief periods of time, but she did not have

any concerns about Father’s conduct. Id. at 6-7. There was one incident

during September of 2014, during which Father was “rough” with Child. Id.

at 35-36.

      Mr. Anthony Williams testified that he is employed by Allegheny

County Drug Testing. Id. at 19. Mr. Williams explained that Father failed to

appear for seven of his sixteen scheduled drug tests. Id. at 21. In addition,

Father tested positive on three occasions.     Id.   Father tested positive for

THC on December 13, 2013, and November 21, 2014.            Id.   Father tested

positive for cocaine on January 5, 2015. Id.

      Father testified that he resided with a friend following his release from

incarceration in August of 2013. N.T., 4/15/2015, at 44-45. Father claimed

that it took him so long to find housing because he was looking for a

residence that he could afford, and that was “surrounded . . . by

playgrounds and stuff” for Child. Id. at 50. Father acknowledged that he

missed several recent visits with Child, but stated that he was aware of only

four missed visits, and that one of them was missed because he was sick.

Id. at 57.

      Concerning the rest of his FSP objectives, Father acknowledged that he

did not complete his parenting program because he failed to pay restitution,

and was incarcerated due to a probation violation. Id. at 51. Father alleged

that he stopped attending his domestic violence program because the



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program was charging him $25 per class.      Id. at 52-53. Similarly, Father

reported that he has not been able to afford a drug and alcohol evaluation,

even on a sliding pay scale. Id. at 48. However, Father insisted that he is

drug tested at his place of employment, and by his probation officer. Id. at

46-47.

      Based on this testimony, the orphans’ court found that Father has

ongoing issues with drug use and anger management, and that Father has

failed to make progress in addressing his FSP objectives.     Orphans’ Court

Op., 6/2/2015, at 5. The court emphasized Father’s “non-compliance with a

drug and alcohol assessment, his only recent procurement of permanent

housing, his recent positive testing for cocaine, his non-compliance for

domestic violence classes and domestic violence history, and Father’s failure

to move toward unsupervised visits . . . .” Id.

      After careful review, we conclude that the orphans’ court did not abuse

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

Father has a lengthy history of criminal activity, and has had numerous PFA

petitions filed against him.   Moreover, Father has not made significant

progress toward achieving reunification with Child since discovering that he

is her father.   Most notably, Father recently failed to appear for several

visits with Child, and tested positive for cocaine.      Thus, the evidence

supports the conclusion of the orphans’ court that Father is incapable of




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parenting Child, and that Father will not, or cannot, remedy this parental

incapacity.

      Additionally, we reject Father’s contention that CYF failed to make

adequate reunification efforts.      Our Supreme Court recently held that

reasonable reunification efforts are not necessary to support an order

terminating parental rights.     We have discussed the Court’s decision as

follows.

           In In re D.C.D., ___ Pa. ___, 105 A.3d 662 (Pa. 2014),
           our Supreme Court analyzed the language of Section
           2511(a)(2) of the Adoption Act, as well as Section 6351 of
           the Juvenile Act, 42 Pa.C.S.A. § 6351. The Court reasoned
           that, while “reasonable efforts may be relevant to a court’s
           consideration of both the grounds for termination and the
           best interests of the child,” neither of these provisions,
           when read together or individually, requires reasonable
           efforts. The Court also concluded that reasonable efforts
           were not required to protect a parent’s constitutional right
           to the care, custody, and control of his or her child. . . .

In re Adoption of C.J.P., 114 A.3d 1046, 1055 (Pa. Super. 2015) (some

citations omitted). No relief is due.

      We next consider whether the orphans’ court abused its discretion by

terminating Father’s parental rights under Section 2511(b).           We have

discussed our analysis under Section 2511(b) as follows.

           Subsection 2511(b) focuses on whether termination of
           parental rights would best serve the developmental,
           physical, and emotional needs and welfare of the child. In
           In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this
           Court stated, “Intangibles such as love, comfort, security,
           and stability are involved in the inquiry into the needs and
           welfare of the child.” In addition, we instructed that the
           trial court must also discern the nature and status of the


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         parent-child bond, with utmost attention to the effect on
         the child of permanently severing that bond.           Id.
         However, in cases where there is no evidence of a bond
         between a parent and child, it is reasonable to infer that
         no bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa.
         Super. 2008). Accordingly, the extent of the bond-effect
         analysis necessarily depends on the circumstances of the
         particular case. Id. at 63.

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

      Psychologist, Neil Rosenblum, testified that he conducted a series of

evaluations with respect to Father, Child, and Child’s foster mother. N.T.,

4/15/2015, at 4-6. Dr. Rosenblum preformed an interactional evaluation of

Child and her foster mother on June 14, 2013; an interactional evaluation of

Child and Father on January 13, 2014; an individual evaluation of Father on

January 13, 2014; an interactional evaluation of Child and her foster mother

on January 20, 2014; an interactional evaluation with Child and her foster

mother on October 15, 2014; an interactional evaluation with Child and

Father on October 15, 2014; an individual evaluation of Father on October

15, 2014; and an interactional evaluation of Child and her foster mother on

March 11, 2015.2    Id. at 5.   Based on these evaluations, Dr. Rosenblum

concluded that Child’s foster mother is Child’s “primary attachment figure

and the most important anchor of her emotional growth and security.” Id.

at 9. Child and her foster mother share “an exceptionally close relationship,”


2
 Father failed to attend an evaluation scheduled for February 11, 2015.
See Ex. CYF 5 (Dr. Rosenblum’s evaluations).




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and Child’s foster mother displays excellent parenting skills. Id. at 8. Dr.

Rosenblum stated that removing Child from her foster mother “would lead to

a severe risk of major regression and emotional difficulty on her part.” Id.

at 22.

         With respect to Father, Dr. Rosenblum testified that he handled his

interactional evaluations with Child “pretty well,” and that Father acted

appropriately. Id. at 18-20. Child knows that Father is her father. Id. at

20.      However, not surprisingly, there was no evidence of a strong

attachment between Father and Child.                Id.   During the interactional

evaluation in October of 2014, Child initially hid behind her foster mother,

and did not want to go into the evaluation room with Father.               Id. at 19.

Child also refused to give Father a hug. Id. In addition, since the summer

of 2014, Child has been exhibiting “concerning patterns of aggressive

behavior,     hitting,   biting,   having   sleep    difficulties,   actually   having

nightmares, and being very difficult to console . . . .”             Id. at 9.    This

behavior coincided with Father’s release from incarceration in June of 2014,

and the resumption of his visits with Child in July or August of 2014.             Id.

Dr. Rosenblum did not believe that Child would suffer any adverse effects if

Father’s parental rights were terminated, and opined that adoption by foster

mother would be consistent with Child’s needs and welfare. Id. at 20, 22.

Nonetheless, Dr. Rosenblum indicated that it would be beneficial for Child to




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maintain a relationship with Father, and suggested that an open adoption

would be the best outcome. Id. at 33-34, 39.

      The orphans’ court found that Child has a strong bond with her foster

mother, and that Child would not suffer any adverse effects if Father’s

parental rights are terminated.    Orphans’ Court Op., 6/2/2015, at 5.   The

court noted that Child has been in foster care for an extended period of

time, and that Child is in need of a safe and stable home. Id.

      We again discern no abuse of discretion.       The record confirms that

Child is bonded with her foster mother, who has cared for Child since she

was about four months old, and that Child does not share a bond with

Father. While Dr. Rosenblum opined that it would be beneficial for Child to

maintain some type of relationship with Father, he also made it clear that

Child’s needs and welfare would best be served by allowing Child to be

adopted. Father is not entitled to relief.

      For the foregoing reasons, we affirm order of the orphans’ court

involuntarily terminating Father’s parental rights to Child.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/15/2015




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