J-S19043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: V.R.B.                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: T.B., FATHER                    :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1856 MDA 2016

                    Appeal from the Decree October 17, 2016
               In the Court of Common Pleas of Lancaster County
                      Civil Division at No(s): 1525 of 2016


BEFORE:      GANTMAN, P.J., BENDER, P.J.E. and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.                            FILED MARCH 31, 2017

        Appellant, T.B. (“Father”), appeals from the decree entered on

October 17, 2016, in the Court of Common Pleas of Lancaster County

granting the petition of Lancaster County Children and Youth Social Service

Agency (the “Agency”) and involuntarily terminating his parental rights to

his minor, dependent daughter, V.R.B. (“Child”), born in August of 2012,

pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (b).1,       2
                                                               After careful review,

we affirm the trial court’s decree.
____________________________________________


*
  Former Justice specially assigned to the Superior Court.
1
  By the same decree, the trial court involuntarily terminated the parental
rights of F.P. (“Mother”) with respect to Child. Mother did not file a separate
appeal, nor is Mother a party to the instant appeal. We note the parental
rights with respect to Child’s two half-siblings, E.N.L. and C.R.L., were also
terminated by this decree, but are not the subject of this appeal.
2
   The court incorrectly references 23 Pa.C.S. § 2511(a)(5) and (8) as
subsections under which it terminated Father’s parental rights in its opinion.
J-S19043-17



      The trial court summarized the relevant procedural and factual history

as follows:

             The initial referral for this family was made to the Chester
      County Child Welfare Agency because 3 month old [C.R.L.] was
      found to have suffered multiple bilateral subdural hematomas in
      various stages of healing. Subsequently, after being evicted
      from their Chester County home, Mother and her three children
      were residing in a Lancaster County motel on October 27, 2016.
      Mother was uncooperative with the Agency. She had no plans
      for the family’s housing other than the one room motel facility.
      She professed ignorance of how [C.R.L.] had been injured. The
      Agency filed a petition for temporary legal and physical custody
      and the children were placed in foster care on October 29, 2015.
      The children, including [V.R.B.], were found to be dependent at
      hearing on February 1, 2016. The [c]ourt also found that
      aggravated circumstances existed against Father after learning
      that he had been charged with a felony under 18 Pa.C.S. § 2702
      relating to aggravated assault, § 3121 relating to rape, § 3123
      relating to involuntary deviate sexual intercourse, § 3124.1
      relating to sexual assault, and § 3125 relating to aggravated
      indecent assault.       He had pleaded guilty to one count of
      aggravated indecent assault of a child and one count of
      endangering the welfare of a child. The victim was his niece. He
      has been incarcerated since September of 2013 and does not
      expect to be released before 2020. His maximum sentence
      would release him in 2033. He will be listed on Megan’s List
      upon release.          Pursuant to its finding of aggravated
      circumstances, the [c]ourt ordered that he be given no plan and
      terminated his visitation with his daughter. [V.R.B.]’s goal was
      set as adoption and the concurrent permanency goal was
      Placement with a Fit and Willing Relative.

             Four year old [V.R.B.] has never lived with Father,
      although Mother brought [V.R.B.] to his house periodically to
      visit. He never paid child support, because, he explained, there
      was no court order obligating him to do so. While incarcerated,
      he attempted to stay in contact with [V.R.B.] through writing
      sixteen letters between April 29 and September 20 of 2016. He
      also wrote four letters to Agency caseworkers. On April 8, 2016,
      the three children were placed in the home of their maternal
      grandparents, where they have adjusted well.          This is a


                                     -2-
J-S19043-17


       potentially permanent resource for all of the children.        No
       services were deemed necessary for [V.R.B.]

Trial Court Opinion (“T.C.O.”), filed 12/12/16, at 2-3 (citations to record and

footnote omitted).

       The Agency filed a petition to terminate parental rights on July 13,

2016, pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (b). On July 14, 2016,

the court entered a Preliminary Decree scheduling a termination hearing for

August 22, 2016.          On August 22, 2016, the termination hearing was

continued until October 17, 2016, and [V.R.B.]’s juvenile court records were

incorporated into the termination proceedings.3       The trial court held a

termination hearing on October 17, 2016. In support thereof, the Agency

presented the testimony of Robert Pratt, the Agency caseworker supervisor.

Additionally, Father testified on his own behalf.4 By decree entered October

17, 2016, the trial court involuntarily terminated the parental rights of

Father pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (b).

       On November 15, 2016, Father, through counsel, 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)(i) and (b).

____________________________________________


3
  The juvenile court records were not included with the certified record.
Nonetheless, we do not find these records necessary for the disposition of
this appeal.
4
  Father testified via telephone from SCI Somerset, where he is incarcerated.
Mother and M.J.L, the father of E.N.L. and C.R.L., were present, but did not
testify.



                                           -3-
J-S19043-17



      On appeal, Father raises the following issue for our review:

         Did the Agency meet its burden of introducing sufficient
         evidence that any of the grounds for termination of parental
         rights have been met where Father, although incarcerated,
         has availed himself of the limited means to remain involved in
         his daughter’s life?

Father’s Brief at 7.

      In matters involving involuntary termination of parental rights, our

standard of review is as follows:

            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.” In re Adoption of S.P., [616 Pa.
      309, 325, 47 A.3d 817, 826 (2012)]. “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. “[A] decision
      may be reversed for an abuse of discretion only upon
      demonstration    of   manifest    unreasonableness,    partiality,
      prejudice, bias, or ill-will.” Id.    The trial court’s decision,
      however, should not be reversed merely because the record
      would support a different result. Id. at [325-26, 47 A.3d at]
      827. We have previously emphasized our deference to trial
      courts that often have first-hand observations of the parties
      spanning multiple hearings. See In re R.J.T., [608 Pa. 9, 26-
      27, 9 A.3d 1179, 1190 (2010)].

In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013). “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.”    In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004)

(citation omitted).    “[I]f competent evidence supports the trial court’s

findings, we will affirm even if the record could also support the opposite


                                     -4-
J-S19043-17



result.”   In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003)

(citation omitted).

      Section 2511 of the Adoption Act, 23 Pa.C.S. §§ 2101-2938, controls

the termination of parental rights, and requires a bifurcated analysis, as

follows:

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating
      parental rights. 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).        We

have defined clear and convincing evidence as that which 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 C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter

of Adoption of Charles E.D.M. II, 550 Pa. 595, 601, 708 A.2d 88, 91 (Pa.

1998)).

      In the case sub judice, the trial court terminated Father’s parental

rights pursuant to 23 Pa.C.S. § 2511(a)(1) and (2), as well as (b). We have


                                    -5-
J-S19043-17



long held that, in order to affirm a termination of parental rights, we need

only agree with the trial court as to any one subsection of Section 2511(a),

well as Section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super.

2004) (en banc). Here, we analyze the court’s termination order pursuant

to subsections 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 examine the court’s termination of Father’s parental rights

under Section 2511(a)(2).



                                    -6-
J-S19043-17


      In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
      2511(a)(2), the following three elements must be met: (1)
      repeated and continued incapacity, abuse, neglect or refusal; (2)
      such incapacity, abuse, neglect or refusal has caused the child to
      be without essential parental care, control or subsistence
      necessary for his physical or mental well-being; and (3) the
      causes of the incapacity, abuse, neglect or refusal cannot or will
      not be remedied.

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

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

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

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

perform parental duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216

(Pa.Super. 2015) (quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super.

2002)).

      In In re Adoption of S.P., 616 Pa. 309, 47 A.3d 817 (2012), our

Supreme Court, in addressing Section 2511(a)(2), adopted the view that

“incarceration neither compels nor precludes termination” and held that

“incarceration is a factor, and indeed can be a determinative factor, in a

court’s conclusion that grounds for termination exist 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.” Id. at 328-29, 47 A.3d at 828 (citation omitted). See

also In re D.C.D., 629 Pa. 325, 346-47, 105 A.3d 662, 675 (2014) (holding

that father’s incarceration prior to the child’s birth which would extend until


                                       -7-
J-S19043-17



the child was at least age seven rendered family reunification an unrealistic

goal and the court was within its discretion to terminate parental rights

“notwithstanding the agency’s failure” to follow the court’s initial directive

that reunification efforts be made). The Court in S.P. further stated,

      [W]e now definitively hold that incarceration, while not a litmus
      test for termination, can be determinative of the question of
      whether a parent is incapable of providing “essential parental
      care, control or subsistence” and the length of the remaining
      confinement can be considered as highly relevant to whether
      “the conditions and causes of the incapacity, abuse, neglect or
      refusal cannot or will not be remedied by the parent,” sufficient
      to provide grounds for termination pursuant to 23 Pa.C.S. §
      2511(a)(2). See e.g. Adoption of J.J., [511 Pa. 590, 605,] 515
      A.2d [883, 891 (1986)] (“[A] 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 termination under § 2511(a)(2)
      was supported by mother’s repeated incarcerations and failure to
      be present for child, which caused child to be without essential
      care and subsistence for most of her life and which cannot be
      remedied despite mother’s compliance with various prison
      programs).

In re Adoption of S.P., 616 Pa. at 331-32, 47 A.3d at 830 (footnote

omitted).

      Herein, Father acknowledges “incapacity, as opposed to abandonment,

can be grounds for termination if the conditions and causes of the incapacity

cannot or will not be remedied by the parent.” Father’s Brief at 16. Father

further notes that while four years is a significant portion of a young child’s

life, there is no “bright line rule regarding the length of a remaining prison

sentence which automatically disqualifies a parent.” Id. Father stresses that



                                     -8-
J-S19043-17



V.R.B. may be “only eight years old when he is released [from prison] and

she would still be in the middle of her childhood.” Id. (emphasis in original).

Father concludes that although subject to Megan’s Law, he is not restricted

from having contact with minors and may be able to rehabilitate given the

potential for his entry into the Sexual Offenders Program and his ability to

obtain additional counseling in prison. Id. at 17.

      In finding grounds for termination, the trial court noted:

             Although Father testified that he did attempt to stay in
      contact with [V.R.B.] through letters, the [c]ourt does not see
      his activities as a serious effort, noting that he did not begin to
      write [V.R.B.] immediately after his incarceration in September
      of 2013, but took no action to stay connected with her until after
      the February, 2015 dependency hearing, which served to inform
      him that his parental rights were at risk through aggravated
      circumstances and the denial of a plan.           Although he was
      imprisoned in September of 2013 and [V.R.B.] was placed in
      foster care in October of 2015, it was not until April of 2016 that
      he sent the first of 16 letters to her. He will remain in prison for
      at least another 4 years, with the possibility of an extension of
      his incarceration until the time [V.R.B.] is an adult.         Thus
      Father’s contact with his daughter, who certainly does not
      remember him since she was only one year old when he went to
      prison, has been 16 letters to a child who cannot read – i.e.,
      effectively letters from a stranger. The [c]ourt understands that
      this is an effort on Father’s part, despite its flaws. However,
      even where the parent makes earnest efforts, the “court cannot
      and will not subordinate indefinitely a child’s needs 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). A parent’s performance must be
      measured against what would be expected of an individual in
      similar circumstances to a parent. Lookabill v. Moreland, 485
      A.2d 1204[, 1206] (Pa. Super. 1984) [(citing Matter of M.L.W.,
      452 A.2d 1021 (Pa. Super. 1982))]. Father sent a non-reading
      child letters. Even in prison, he could have managed to arrange
      for cards, pictures, etc. things which have more meaning to a
      child. The [c]ourt would expect an appropriate parent to take

                                     -9-
J-S19043-17


        action earlier in his sentence term and continue in a way that
        would have meaning to a child as she aged into the toddler
        years. Father’s late and insufficient effort was not weighty
        enough to serve to keep [V.R.B.] in the limbo of foster care and
        away from a chance for permanence and stability in her current
        placement.

              Other aspects of father’s life obligate the [c]ourt to
        terminate. In 2020, [V.R.B.] will be eight years old. This court
        cannot begin to imagine a circumstance in which any judge
        would place a little girl with a man with Father’s criminal history
        of sexual crimes against his niece. Therefore, even if his rights
        had not been terminated, Father would be a parent in name
        only, since he is not in a position to be given custody of his
        daughter and there is no way he can remedy the situation.

T.C.O. at 6-7 (emphasis in original).

        A review of the record supports the trial court’s determination of a

basis for termination under Section 2511(a)(2).                 Significantly, Father has

been incarcerated since September 2013, when Child was one year old, and

has a minimum release date of 2020, when Child will turn eight years old.

Notes      of     Testimony         (“N.T.”),        10/17/16,        at   28-29,       35.

Although     Father    indicated    that       he   regularly   saw    Child   before   his

incarceration, his contact since has been limited to correspondence which

was not sent until after the commencement of the dependency matter. 5,                    6



N.T. at 23-24, 27-28, 30-32. See also Defendant [Father] Exhibit 1.
____________________________________________


5
 Father testified that he was not aware he could send letters to Child until
he asked his attorney once the dependency matter arose and was advised
he could send them to the Agency. N.T. at 30-32.
6
  Father additionally contacted the Agency and COBYS, Church of the
Brethren Youth Services, via telephone and letter on several occasions
(Footnote Continued Next Page)


                                           - 10 -
J-S19043-17



      Further, Father was denied a reunification plan due to the finding of

aggravated circumstances, and visitation was terminated. Id. at 12. While

Father signed up for numerous programs upon his incarceration, such as the

Sexual Offenders Program and Therapeutic Community drug and alcohol

rehabilitation,7 he still is on the waiting list,8 having only completed

Narcotics Anonymous. Id. at 29-30, 34-35. Father testified that parenting

classes, however, are not offered. Id. at 29.

      Even assuming that Father is released from prison at the earliest

possible opportunity, that is four years from the date of the termination

hearing. At that time, Child will have been in custody of the Agency for five

years.   Moreover, it is speculative that Father will then, or ever, be in a

position to care for Child. This prospect is simply unacceptable for Child. 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

                       _______________________
(Footnote Continued)

regarding Child. However, telephone calls were unable to be returned and
mail sent to Father was returned. N.T. at 20-23, 26. See also Defendant
[Father] Exhibit 1.
7
  Father also references this as “IC,” intensive care for drug addiction. N.T.
at 29.
8
  Father explained that participation in these programs is based upon an
inmate’s minimum date. Id. at 29-30, 34-35.



                                           - 11 -
J-S19043-17



and hope for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa.

Super. 2006). Hence, the record substantiates the conclusion that Father’s

repeated and continued incapacity, abuse, neglect, or refusal has caused

Child to be without essential parental control or subsistence necessary for

her physical and mental well-being.   See In re Adoption of M.E.P., 825

A.2d at 1272.   Moreover, Father cannot or will not remedy this situation.

See id. As noted above, in order to affirm a termination of parental rights,

we need only agree with the trial court as to any one subsection of Section

2511(a) before assessing the determination under Section 2511(b). In re

B.L.W., 843 A.2d at 384.

     We next determine whether termination was proper under Section

2511(b). Our Supreme Court has stated as follows:

     [I]f the grounds for termination under subsection (a) are met, a
     court “shall give primary consideration to the developmental,
     physical and emotional needs and welfare of the child.” 23
     Pa.C.S. § 2511(b). The emotional needs and welfare of the child
     have been properly interpreted to include “[i]ntangibles such as
     love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
     791 (Pa. Super. 2012). In In re E.M. [a/k/a E.W.C. & L.M.
     a/k/a L.C., Jr.], [553 Pa. 115, 123, 620 A.2d 481, 485 1993)],
     this Court held that the determination of the child’s “needs and
     welfare” requires consideration of the emotional bonds between
     the parent and child. The “utmost attention” should be paid to
     discerning the effect on the child of permanently severing the
     parental bond. In re K.M., 53 A.3d at 791. However, as
     discussed below, evaluation of a child’s bonds is not always an
     easy task.

In re T.S.M., 620 Pa. at 628-29, 71 A.3d at 267. “[I]n cases where there is

no evidence of a bond between a parent and child, it is reasonable to infer


                                   - 12 -
J-S19043-17



that no bond exists.      Accordingly, the extent of the bond-effect analysis

necessarily depends on the circumstances of the particular case.”            In re

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

        When evaluating a parental bond, “the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well.    Additionally, Section 2511(b) does not require a formal bonding

evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal

citations omitted).

        Moreover,

        [w]hile 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. . . .

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) (citing In re K.K.R.-S., 958 A.2d 529, 533 (Pa.Super.

2008))) (internal citations omitted).

        In the case sub judice, in reasoning that termination of Father’s

parental rights favors Child’s needs and welfare under Section 2511(b) of

the Adoption Act, the trial court stated:




                                      - 13 -
J-S19043-17


      There is no question in this case that the best interests of the
      child will be served by remaining right where she is – with her
      grandparents and her half-siblings. She is not even acquainted
      with her father, having been a one year old infant when she saw
      him last. All [V.R.B.] could know of him is that there is someone
      who for six months wrote her letters she cannot yet read. There
      can be no bond whatsoever between them. He has never tended
      to her needs. He is in prison. He has no job, no home, no
      resources. The timing of whether he will ever be available to
      parent her – in physical or psychological terms – is an unknown
      element, and, because of his criminal history, is an unlikely
      occurrence. He is a sexual predator and will be listed on
      Megan’s List. She lives with her grandparents and they have
      formed a meaningful bond. She is living with her two half-
      sisters. There is no support for father’s position in these facts.
      His parental rights must be terminated to serve [V.R.B.]’s best
      interests. It is the [c]ourt’s determination that [V.R.B.]’s best
      interests will be served by her remaining right where she is, with
      her grandparents and her sisters.

T.C.O. at 7-8.

      Father, however, presents no argument related to Section 2511(b).

As such, we find that Father has waived any challenge regarding Section

2511(b) and Child’s needs and welfare. See In re W.H., 25 A.3d 330, 339

n.3 (Pa.Super. 2011) (stating, “[W]here an appellate brief fails to provide

any discussion of a claim with citation to relevant authority or fails to

develop the issue in any other meaningful fashion capable of review, that

claim is waived”) (citation omitted).

      Accordingly, based upon our review of the record, we find no abuse of

discretion and conclude that the trial court appropriately terminated Father’s

parental rights under 23 Pa.C.S. § 2511(a)(2) and (b). We, therefore, affirm

the decree of the trial court.



                                    - 14 -
J-S19043-17



     Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2017




                          - 15 -
