J-S62002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: R.H., A MINOR :        IN THE SUPERIOR COURT OF
                                      :             PENNSYLVANIA
                                      :
                                      :
                                      :
                                      :
                                      :
                                      :
    APPEAL OF: B.S., FATHER           :        No. 786 MDA 2017

                  Appeal from the Decree entered April 3, 2017
                 In the Court of Common Pleas of Mifflin County
                       Orphans' Court at No: 2016-00012

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

MEMORANDUM BY STABILE, J.:                       FILED OCTOBER 11, 2017

        B.S. (“Father”) appeals from the decree entered April 3, 2017, in the

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

parental rights to his minor son, R.H. (“Child”), born in July 2014.1     After

careful review, 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., 12/12/16, at 62. Child

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


* Retired Senior Judge assigned to the Superior Court.

1 The decree 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 her own separate appeal.
J-S62002-17



Exhibit R.H. - 1 (Order of Adjudication – Child Dependent). At the time Child

was adjudicated dependent, Father was incarcerated at Mifflin County

Correctional Facility due to “drug charges as well as DUI and driving without

a license.”    N.T., 12/12/16, at 67.          Father received visits with Child while

incarcerated, starting in July 2015.            Id. at 30.   However, Father’s visits

ended after he pled guilty to possession of a controlled substance and was

transferred to State Correctional Institution – Smithfield (“SCI Smithfield”) in

December 2015. Id. at 32, 67. Father was released from SCI Smithfield on

July 25, 2016, and then spent about three weeks in federal custody before

entering a halfway house in August 2016.2 Id. at 67, 133-34.

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

terminate 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 a decree terminating Father’s parental rights. 3
____________________________________________


2The record indicates that Father will remain on state parole until November
2017, and will remain on federal parole until “a few months after
November.” N.T., 12/12/16, at 67, 150.

3 It appears that the orphans’ court waited to enter its termination decree
until it could enter a single decree 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.

       We note that, prior to the hearing, on March 22, 2017, the Agency
filed a motion to supplement the record, indicating that Father had been
(Footnote Continued Next Page)


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Father timely filed a notice of appeal on May 2, 2017, along with a concise

statement of errors complained of on appeal.

      Father now raises the following issues, which we have reordered for

purposes of our review.


      Question [1]: Did the [orphans’] court err in finding that there
      was clear, convincing and sufficient evidence establishing all
      elements of the statutory grounds alleged for the involuntary
      termination of Father’s parental rights?

      Question [2]: Did the [orphans’] court err in ordering the
      termination of Father’s parental rights as being in the best
      interest of the child and as best serving the needs and welfare of
      the child, where the record does not contain clear, convincing
      and sufficient evidence as to both the nature and strength of the
      father/child attachment and effects on the child of the severing
      of that attachment?

Father’s Brief at 3 (orphans’ court answers and suggested answers omitted).

      We address these issues 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 court made an error of law

(Footnote Continued) _______________________

arrested once again and charged with a new criminal offense. 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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      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.A. §§ 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 Section 2511(a)(2), (5), (8), and (b). We need only agree with

the 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 (Pa. Super.

2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).              Here, we


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analyze the court’s decision to terminate under Section 2511(a)(2) and (b),

which provides as follows.4

       (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


____________________________________________


4 We note that the orphans’ court erred by concluding that Father’s parental
rights could be terminated under Sections 2511(a)(5) and (8). Both of these
Sections require that the subject child have “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.A. § 2511(a)(5), (8). Because Child was
not removed from Father’s care, his parental rights cannot be terminated
under these Sections. See In re C.S., 761 A.2d 1197, 1200 (Pa. Super.
2000) (en banc) (concluding that termination was inappropriate under
Sections 2511(a)(5) and (8) “because the record reflects that C.S. was
never in Appellant’s care and, therefore, could not have been removed from
his care.”).



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     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).

     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 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). Importantly, “a parent’s incarceration is relevant

to the 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).

     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, 4/3/17, at 9-10.        The court

reasoned that Father made no effort to maintain contact with Child after he


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was transferred from Mifflin County Correctional Facility to SCI Smithfield in

December 2015.          Id. at 8-9.   The court further reasoned that Father

displayed a lack of interest in complying with court-ordered services,

because   he   failed    to   complete   a   parenting   program   during   Child’s

dependency, and because he participated in drug and alcohol treatment only

as a condition of his parole, and only after the Agency filed a petition to

terminate his parental rights. Id. at 9.

      Father argues that he substantially completed the goals set forth for

him in Child’s permanency plan, and remedied his parental incapacity.

Father’s Brief at 12-13.      Specifically, Father argues that he participated in

drug and alcohol treatment programs, participated in a federal reentry

program, cooperated with parole since being released from incarceration,

and avoided any new criminal charges.          Id. at 13.   Father further argues

that he demonstrated parenting skills during his visits with Child, that he

took parenting classes in 2009, and that he has other sons who presently

reside with him.        Id.   Finally, Father argues that he has housing and

employment. Id.

      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 she and Father separated in December 2013, before

Child was born. N.T., 12/12/16, at 7. Mother testified that Father saw Child

in person only once prior to his placement in foster care. Id. Specifically,

Father came to visit Mother and Child when Child was “a few weeks old,” in

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approximately August 2014. Id. at 7, 20. Mother recalled that Father gave

her thirty dollars, and asked for a paternity test. Id. at 7, 17. Mother filed

for child support and obtained paternity testing. Id. at 11. However, Father

was already incarcerated by the time Mother received confirmation of his

paternity, and she never received any additional financial support.    Id. at

10-11.

       The orphans’ court also heard the testimony of Gwen Steiner,

Reunification Supervisor for Family Intervention Crisis Services (“FICS”).

Ms. Steiner testified that FICS provided visits, parenting instruction, and

counseling sessions for Father starting in July 2015, while he was

incarcerated at Mifflin County Correctional Facility.   Id. at 30-33, 36.   As

noted above, Ms. Steiner testified that Father’s visits ended when he was

transferred to SCI Smithfield in December 2015. Id. at 38. FICS did not

provide visits to Father while he was incarcerated at SCI Smithfield, because

he did not ask for visits, and because “[w]e also have to look at the well[-

]being of the child and their age and what would be appropriate for them

looking at the distance we’re traveling to.” Id. Even after his release from

SCI Smithfield on July 25, 2016, Father did not contact FICS regarding

visits.5 Id. at 38-39.


____________________________________________


5 Father testified that he was released on July 16, 2016, and spent about
three weeks in federal custody before being released to a halfway house.
N.T., 12/12/16, at 133-34.



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      In addition, the orphans’ court heard the testimony of Agency

caseworker, and Assistant Administrator, Nicole Patkalitsky. Ms. Patkalitsky

testified that Father has a lengthy history of substance abuse, criminal

activity, incarceration, unstable housing, financial instability, and inability to

demonstrate proper parenting.      Id. at 65-66.     Based on this history, the

Agency presented Father with a series of permanency plan goals. Id. at 65.

These goals included participating in drug and alcohol counseling and

parenting classes while incarcerated. Id. The goals also included refraining

from illegal activity upon being released from incarceration, as well as

demonstrating parenting skills, obtaining and maintaining stable housing and

income, and cooperating with service providers. Id.

      Concerning    Father’s    progress   in   completing   these   goals,   Ms.

Patkalitsky testified that Father has only recently begun to cooperate with

the Agency by providing information regarding his compliance.         Id. at 96.

Ms. Patkalitsky acknowledged that the Agency did not provide visits or

services to Father after he was transferred to SCI Smithfield, because it is

the Agency’s policy not to provide visits or services to parents who are

incarcerated in state prison. Id. at 88. However, she explained that Father

did not request visits or services while at SCI Smithfield, nor did he contact

the Agency in any way.         Id. at 69-71, 101.     After his transfer to SCI

Smithfield in December 2015, Father failed to contact the Agency until at or

near the time the termination petition was filed in September 2016. Id. at

69-70.

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

and that he cannot remedy his parental incapacity. Father has a substantial

criminal history, which has resulted in his being incarcerated for much of

Child’s life.   At the time of the termination hearing, Father had only been

released from state and federal custody for approximately four months, and

it remained to be seen whether he would be able to maintain a crime-free

lifestyle for any significant period of time.   Moreover, Father has shown

virtually no interest in Child.   Prior to his incarceration at Mifflin County

Correctional Facility, Father visited with Child only once.   Although Father

participated in visits with Child while incarcerated in Mifflin County, he made

no effort to continue with visits or to maintain contact with the Agency after

his transfer to SCI Smithfield. Father was transferred to SCI Smithfield in

December 2015, and it was not until September 2016 that Father made

contact with the Agency. 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).

      Further, while Father argues that he substantially completed the goals

set forth for him in Child’s permanency plan, it was within the discretion of

the orphans’ court to reject Father’s progress as insufficient.    During the

termination hearing, Father testified that he is participating in a federal

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reentry program.        N.T., 12/12/16, at 134, 146.           Father also presented

various certificates showing that he completed parenting and first aid

programs while incarcerated in federal prison in 2009. Id. at 127-28, 151;

Respondent’s Exhibit 1.         Father presented a certificate showing that he

completed a “maturity into manhood program” entitled “Knights of the 21 st

Century” while incarcerated at Mifflin County Correctional Facility in April

2015, prior to Child’s dependency.             N.T., 12/12/16, at 130; Respondent’s

Exhibit 2.     Finally, Father testified that he completed outpatient drug

treatment at SCI Smithfield as a condition of his parole. N.T., 12/12/16, at

132. Father presented a letter showing that he has been participating in an

additional outpatient program since October 2016, also as part of his parole.

Id.   at   136;    Respondent’s      Exhibit    3.    At   best,   Father’s   testimony

demonstrates that he participates in services when he is forced to do so

because of his criminal convictions, or when he simply has nothing else to do

because he is incarcerated. These minimal efforts do not overcome Father’s

unresolved criminal history, and his lack of interest in Child.6




____________________________________________


6 We also reject Father’s argument that his alleged success in caring for his
other children should prevent the termination of his parental rights with
respect to Child. It is well-settled that “evidence concerning a parent's
ability to care for another child is irrelevant and inadmissible in a proceeding
to terminate parental rights with regard to the child at issue.” A.L.D., 797
A.2d at 338 (citations omitted).



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

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

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

      Section 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. As this Court has
      explained, Section 2511(b) does not explicitly require a bonding
      analysis and the term ‘bond’ is not defined in the Adoption Act.
      Case law, however, provides that analysis of the emotional bond,
      if any, between parent and child is a factor to be considered as
      part of our analysis. While a parent’s emotional bond with his or
      her child is a major aspect of the subsection 2511(b) best-
      interest analysis, it is nonetheless only one of many factors to be
      considered by the court when determining what is in the best
      interest of the child.

            [I]n addition to a bond examination, the trial court
            can equally emphasize the safety needs of the child,
            and should also consider the intangibles, such as the
            love, comfort, security, and stability the child might
            have with the foster parent. Additionally, this Court
            stated that the trial court should consider the
            importance of continuity of relationships and whether
            any existing parent-child bond can be severed
            without detrimental effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and

citations omitted).

      Here, the orphans’ court found that terminating Father’s parental

rights would best serve Child’s needs and welfare. Orphans’ Court Opinion,

4/3/17, at 16. The court emphasized that Father’s only significant contact

with Child occurred between July 2015 and December 2015, and that Father



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enjoyed only weekly one-hour supervised visits.              Id. at 14.   The court

further emphasized that terminating Father’s parental rights will allow Child

to achieve a permanent, healthy, safe, and secure relationship with his

foster parents, with whom he has lived for nearly his entire life, and will

allow him to continue residing in the same foster home as his half-brother.

Id. at 15-16.

          Father argues that Child is bonded to him, and that the evidence does

not support the conclusion of the orphans’ court that no bond exists.

Father’s Brief at 8-9.      Father argues that he was prevented from further

developing his bond with Child because the Agency and the “Judges of Mifflin

County” have a policy of not allowing children to visit their parents in state

prison, and because the Agency did not offer him visits after his release from

prison. Id. at 9-10.

          We   again   discern   no   abuse   of   discretion.   Regarding   Child’s

relationship with Father, Ms. Steiner testified that she did not view any of

their visits personally, but that she reviewed FICS records describing the

visits.    N.T., 12/12/16, at 47.     Ms. Steiner testified that Child referred to

Father as “Dahdah” during visits. Id. at 48. However, Child’s reaction to

Father was not always positive. Id. Child would sometimes go to Father for

comfort, and would sometimes go to FICS staff. Id. Child would sometimes

be happy to see Father, but other times would cry. Id. When asked if she

saw any bonding between Father and Child, Ms. Steiner explained, “I think

[Child] was at times comfortable going to him and playing with him.              In

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terms of when he needed to be comforted or soothed he was not always

comfortable with that and would, also, go to staff and relied on staff for

that.”    Id. at 56-57.     Ms. Steiner further testified that Child refers to his

foster parents as “mom and dad.” Id. at 58. He appears to be comfortable

and is adjusting very well in the foster home. Id. at 59.

         Similarly, Ms. Patkalitsky testified that Child has no bond with Father,

and instead is bonded with his foster parents. Id. at 71-72. She provided

the following explanation.

         It would be my assessment that [Child] has not seen his
         biological father for almost a year, if not just a year. Um, he’s
         two years old. He would not know who his father is. His mom
         and dad are the foster parents. That is who he calls mom and
         dad. That’s who he looks to for everything a mom and dad
         would give to him. And I don’t see how him being introduced to
         [Father] now would be beneficial to him.

                                           ***

         Like I said before, they[7] depend on the foster parents for
         everything a mom and dad do. Whenever [Child] gets up from a
         nap he goes straight to his foster mom and he calls her mom. If
         [A.], who is the foster dad, tries to walk out the door to go
         outside for something he’s at the door wanting to go with dad.
         They are his parents.

Id.

         Thus, the record confirms that terminating Father’s parental rights will

best serve Child’s needs and welfare.            Child has had minimal contact with

____________________________________________


7 As noted by the orphans’ court, Child resides in the same foster home as
his half-brother.



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Father, and has not seen Father at all since December 2015. Child clearly

does not share a parent/child bond with Father, and there is no indication in

the record that Child would suffer any emotional distress if Father’s parental

rights are terminated.     To the contrary, Child is bonded with his foster

parents, and views them as his mother and father. By terminating Father’s

parental rights, the orphans’ court will allow Child to achieve permanence

and stability, and will allow Child to remain with his half-brother, who

resides in the same foster home.

      While Father argues that he was prevented from developing his

relationship with Child because the Agency did not permit him to have visits

at SCI Smithfield, the record is clear that Father failed to request visits, or to

contact the Agency at all, during that time. Moreover, Father’s incarceration

was entirely his own doing. This Court will not delay permanence for Child

because of Father’s criminal behavior.

      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 decree.




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     Decree affirmed


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2017




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