J-S02031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: J.W., A          :   IN THE SUPERIOR COURT OF
 MINOR                                :        PENNSYLVANIA
                                      :
                                      :
 APPEAL OF: D.W., FATHER              :        No. 2594 EDA 2018

              Appeal from the Decree Entered August 3, 2018
           In the Court of Common Pleas of Philadelphia County
             Family Court at No(s): CP-51-AP-0000088-2018,
                         CP-51-DP-0001265-2012

 IN THE INTEREST OF: S.W.,     A      :   IN THE SUPERIOR COURT OF
 MINOR                                :        PENNSYLVANIA
                                      :
                                      :
 APPEAL OF: D.W., FATHER              :        No. 2595 EDA 2018

              Appeal from the Decree Entered August 3, 2018
           In the Court of Common Pleas of Philadelphia County
             Family Court at No(s): CP-51-AP-0000089-2018,
                         CP-51-DP-0002751-2015

 IN THE INTEREST OF: I.W., A          :   IN THE SUPERIOR COURT OF
 MINOR                                :        PENNSYLVANIA
                                      :
                                      :
 APPEAL OF: D.W., FATHER              :        No. 2597 EDA 2018

              Appeal from the Decree Entered August 3, 2018
           In the Court of Common Pleas of Philadelphia County
             Family Court at No(s): CP-51-AP-0000091-2018,
                         CP-51-DP-0002752-2015


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:               FILED FEBRUARY 21, 2019

     Appellant, D.W. (“Father”), appeals from the decrees entered in the

Philadelphia County Court of Common Pleas Family Court, which granted the

petitions of the Department of Human Services (“DHS”) for involuntary
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termination of Father’s parental rights to his minor children, J.W., S.W., and

I.W. (“Children”) and changed their permanency goals to adoption. We affirm.

       In its opinion, the Family Court fully and correctly set forth the relevant

facts and procedural history of this case.       Therefore, we have no need to

restate them.1 Procedurally we add, Father timely filed notices of appeal and

contemporaneous statements of errors complained of on appeal per Pa.R.A.P.

1925(a)(2)(i) on Tuesday, September 4, 2018 (September 2, 2018, was a

Sunday, and Monday, September 3, 2018, was Labor Day).2 On September

17, 2018, this Court consolidated Father’s appeals sua sponte.

       Father raises three issues for our review:

          WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
          DISCRETION BY FINDING THAT [DHS] PROVED BY CLEAR
          AND    CONVINCING    EVIDENCE    THAT   IT  WAS
          IN…CHILDREN’S BEST INTEREST TO GRANT THE DHS
          PETITION TO CHANGE THE GOAL TO ADOPTION[?]

          WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
          DISCRETION BY GRANTING THE DHS PETITION TO
          TERMINATE FATHER’S PARENTAL RIGHTS BECAUSE IT
          FAILED TO CONSIDER THE [SECTIONS] 2511(A)(1)[,
          (A)](2) EVIDENCE   IN  THE  “TOTALITY  OF  THE
          CIRCUMSTANCES”[?]


____________________________________________


1 The record makes clear the court appointed separate legal counsel for
Children in addition to the Guardian ad Litem. Both counsel articulated and
concurred at the hearing that termination served Children’s legal and best
interests.

2The certified record resolves any question as to whether Father filed notices
of appeal at each docket number. See Commonwealth v. Walker, ___ Pa.
___, 185 A.3d 969 (Pa. 2018) (requiring separate notices of appeal from
orders which resolve issues arising on separate docket numbers).

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         WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
         DISCRETION BY FINDING THAT DHS PROVED BY CLEAR
         AND CONVINCING EVIDENCE THAT IT WAS IN THE “BEST
         INTERESTS” OF…CHILDREN TO BE ADOPTED[?]

(Father’s Brief at 3).

      In his first and third issues combined, Father argues the trial court

violated Father’s due process rights, when the court prevented Father from

testifying and cross-examining witnesses regarding whether adoption was in

Children’s best interest.   Father concludes this Court should reverse the

decrees and remand. We cannot agree.

      As a prefatory matter, “issues not raised in the [trial] court are waived

and cannot be raised for the first time on appeal.”          Pa.R.A.P. 302(a).

Additionally, issues not raised in a Rule 1925 concise statement of errors will

be deemed waived. Lineberger v. Wyeth, 894 A.2d 141 (Pa.Super. 2006).

See also In re L.M., 923 A.2d 505 (Pa.Super. 2007) (applying Rule 1925

waiver standards in family law context). “Rule 1925(b) waivers may be raised

by the appellate court sua sponte.” Commonwealth v. Hill, 609 Pa. 410,

428, 16 A.3d 484, 494 (2011). The Rule 1925(b) statement must be “specific

enough for the trial court to identify and address the issue [an appellant]

wishe[s] to raise on appeal.”   Commonwealth v. Reeves, 907 A.2d 1, 2

(Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007). “[A]

[c]oncise [s]tatement which is too vague to allow the court to identify the

issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement

at all.” Id.

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      Here, Father failed to raise before the trial court any violation of his due

process rights. On appeal, however, Father couches his arguments regarding

the goal change and part of his argument regarding termination as due

process claims.    Specifically, Father claims the court prevented him from

testifying and cross-examining witnesses. Father did not raise his due process

challenge at the termination/goal change hearing. Further, Father’s concise

statement reads as follows:

         1. The trial court erred and/or abused its discretion by
         finding that [DHS] proved by clear and convincing evidence
         that it was in [Children]’s best interests to grant its petitions
         to change the goal to adoption because Father was a viable
         reunification resource and was bonded to…[C]hildren.

         2. The trial court erred and/or abused its discretion by
         granting the DHS petition to terminate Father’s parental
         rights because it failed to consider the [Section] 2511(a)(1),
         (2), (5), (8) evidence in the “totality of the circumstances.”

         3. The trial court erred and/or abused its discretion by
         finding that DHS proved by clear and convincing evidence
         that it was in the “best interests” of [Children] to be adopted
         without taking into consideration the “totality of the
         circumstances.”

(See Concise Statement, filed September 4, 2018; Father’s Brief at Exhibit

B.) Thus, Father failed to preserve his due process complaints. Therefore,

Father’s first and third issues are waived in their entirety. To the extent Father

frames his second issue as a due process claim, that issue is also waived for

purposes of appeal. See Pa.R.A.P. 302(a); Lineberger, supra.

      Appellate review of termination of parental rights cases implicates the

following principles:

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        In cases involving termination of parental rights: “our
        standard of review is limited to determining whether the
        order of the trial court is supported by competent evidence,
        and whether the trial court gave adequate consideration to
        the effect of such a decree on the welfare of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

           Absent an abuse of discretion, an error of law, or
           insufficient evidentiary support for the trial court’s
           decision, the decree must stand. … We must employ
           a broad, comprehensive review of the record in order
           to determine whether the trial court’s decision is
           supported by competent evidence.

        In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
        banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
        (internal citations omitted).

           Furthermore, we note that the trial court, as the finder
           of fact, is the sole determiner of the credibility of
           witnesses and all conflicts in testimony are to be
           resolved by the finder of fact. The burden of proof is
           on the party seeking termination to establish by clear
           and convincing evidence the existence of grounds for
           doing so.

        In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
        2002) (internal citations and quotation marks omitted). The
        standard of clear and convincing evidence means testimony
        that is so clear, direct, weighty, and convincing as to enable
        the trier of fact to come to a clear conviction, without
        hesitation, of the truth of the precise facts in issue. In re
        J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
        uphold a termination decision if any proper basis exists for
        the result reached. In re C.S., 761 A.2d 1197, 1201
        (Pa.Super. 2000) (en banc). If the court’s findings are
        supported by competent evidence, we must affirm the
        court’s decision, even if the record could support an opposite
        result. In re R.L.T.M., 860 A.2d 190, 191-92 (Pa.Super.
        2004).



                                    -5-
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In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165

(2008)).

      DHS filed a petition for the involuntary termination of Father’s parental

rights to Children on the following grounds:

           § 2511. Grounds for involuntary termination

           (a) General Rule.―The rights of a parent in regard to a
           child may be terminated after a petition filed on any of the
           following grounds:

              (1) The parent by conduct continuing for a period of
              at least six months immediately preceding the filing of
              the petition either has evidenced a settled purpose of
              relinquishing parental claim to a child or has refused
              or failed to perform parental duties.

              (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.

                                   *    *    *

              (5) The child has been removed from the care of the
              parent by the court or under a voluntary agreement
              with an agency for a period of at least six months, the
              conditions which led to the removal or placement of
              the child continue to exist, the parent cannot or will
              not remedy those conditions within a reasonable
              period of time, the services or assistance reasonably
              available to the parent are not likely to remedy the
              conditions which led to the removal or placement of
              the child within a reasonable period of time and
              termination of the parental rights would best serve the
              needs and welfare of the child.

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                                 *    *    *

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

                                 *    *    *

        (b) Other considerations.―The court in terminating the
        rights of a parent shall give primary consideration to the
        developmental, physical and emotional needs and welfare
        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.A. § 2511(a)(1), (2), (5), (8), and (b). “Parental rights may be

involuntarily terminated where any one subsection of Section 2511(a) is

satisfied, along with consideration of the subsection 2511(b) provisions.” In

re Z.P., supra at 1117.

        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… 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.


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

      Termination under Section 2511(a)(1) involves the following:

            To satisfy the requirements of [S]ection 2511(a)(1), the
            moving party must produce clear and convincing evidence
            of conduct, sustained for at least the six months prior to the
            filing of the termination petition, which reveals a settled
            intent to relinquish parental claim to a child or a refusal or
            failure to perform parental duties. In addition,

               Section 2511 does not require that the parent
               demonstrate both a settled purpose of relinquishing
               parental claim to a child and refusal or failure to
               perform parental duties. Accordingly, parental rights
               may be terminated pursuant to Section 2511(a)(1) if
               the parent either demonstrates a settled purpose of
               relinquishing parental claim to a child or fails to
               perform parental duties.

            Once the evidence establishes a failure to perform parental
            duties or a settled purpose of relinquishing parental rights,
            the court must engage in three lines of inquiry: (1) the
            parent’s explanation for his...conduct; (2) the post-
            abandonment contact between parent and child; and (3)
            consideration of the effect of termination of parental rights
            on the child pursuant to Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations

omitted).      Regarding the six-month period prior to filing the termination

petition:

            [T]he trial court must consider the whole history of a given
            case and not mechanically apply the six-month statutory
            provision.     The court must examine the individual
            circumstances of each case and consider all explanations
            offered by the parent facing termination of his...parental
            rights, to determine if the evidence, in light of the totality of
            the circumstances, clearly warrants the involuntary
            termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

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718, 872 A.2d 1200 (2005) (internal citations omitted).

      The   grounds   for   termination   of   parental   rights   under   Section

2511(a)(2), 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 (Pa.Super. 2002). “Parents are required to make diligent efforts

towards the reasonably prompt assumption of full parental responsibilities.”

Id. at 340.   The fundamental test in termination of parental rights under

Section 2511(a)(2) was long ago stated in the case of In re Geiger, 459 Pa.

636, 331 A.2d 172 (1975), where the Pennsylvania Supreme Court announced

that under what is now Section 2511(a)(2), “the petitioner for involuntary

termination must prove (1) repeated and continued incapacity, abuse, neglect

or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child

to be without essential parental care, control or subsistence; and (3) that the

causes of the incapacity, abuse, neglect or refusal cannot or will not be

remedied.” In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998).

      Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare.       In re C.P., 901 A.2d 516, 520

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child. The

court must also discern the nature and status of the parent-child bond, paying

close attention to the effect on the child of permanently severing the bond.”


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Id. Significantly:

         In this context, the court must take into account whether a
         bond exists between child and parent, and whether
         termination would destroy an existing, necessary and
         beneficial relationship.

         When conducting a bonding analysis, 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., supra at 1121 (internal citations omitted).

      “The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and have his…rights terminated.”      In re B.L.L., 787 A.2d

1007, 1013 (Pa.Super. 2001). This Court has said:

         There is no simple or easy definition of parental duties.
         Parental duty is best understood in relation to the needs of
         a child. A child needs love, protection, guidance, and
         support. These needs, physical and emotional, cannot be
         met by a merely passive interest in the development of the
         child.   Thus, this [C]ourt has held that the parental
         obligation is a positive duty which requires affirmative
         performance.

         This affirmative duty encompasses more than a financial
         obligation; it requires continuing interest in the child and a
         genuine effort to maintain communication and association
         with the child.

         Because a child needs more than a benefactor, parental duty
         requires that a parent exert himself to take and maintain a
         place of importance in the child’s life.

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         Parental duty requires that the parent act affirmatively with
         good faith interest and effort, and not yield to every
         problem, in order to maintain the parent-child relationship
         to the best of his…ability, even in difficult circumstances. A
         parent must utilize all available resources to preserve the
         parental relationship, and must exercise reasonable
         firmness in resisting obstacles placed in the path of
         maintaining the parent-child relationship. Parental rights
         are not preserved by waiting for a more suitable or
         convenient time to perform one’s parental responsibilities
         while others provide the child with [the child’s] physical and
         emotional needs.

In re B.,N.M., supra at 855 (internal citations and quotation marks omitted).

“[A] parent’s basic constitutional right to the custody and rearing of his…child

is converted, upon the failure to fulfill his…parental duties, to the child’s right

to have proper parenting and fulfillment of [the child’s] potential in a

permanent, healthy, safe environment.” Id. at 856.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the reasoned opinion of the Honorable Daine Grey, Jr., we

conclude Father’s second issue merits no relief.       The Family Court opinion

comprehensively discusses and properly disposes of the question presented.

(See Family Court Opinion, filed October 25, 2018, at 4-10) (finding: record

indicates Father demonstrated settled purpose of relinquishing parental claim

to Children and failed to perform parental duties for at least six months before

DHS filed termination petitions; at termination hearing, Father testified that

for over six years before termination hearing he was aware of DHS’

involvement with Children, knew single case plan (“SCP”) objectives were in


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place, and knew completion of SCP objectives was vital to reunification with

Children; nonetheless, Father failed to comply with court’s orders, take any

assessments ordered, and attend supervised visits with Children; after July

2016, Father did not visit Children for over two years; Father only visited

Children again five months after DHS filed termination petitions; additionally,

case worker testified that although she spoke to Father several times, he failed

to perform tasks to meet SCP objectives; Father’s failure to complete SCP

objectives demonstrated his lack of interest in caring for Children; Father

offered no evidence to show he had made any effort to re-establish ties with

Children during six-month period before DHS filed termination petitions;

termination of Father’s parental rights to Children under Section 2511(a)(1)

was warranted; regarding termination pursuant to Section 2511(a)(2), Father

failed to cooperate with social services, including completing dual diagnosis

assessments, anger management classes, and housing clearances; Father’s

failure consistently to visit Children established his indifference to Children;

Father’s failure to comply with SCP objectives left Children without essential

parental care, which Father refused to remedy; record supports termination

of Father’s parental rights under Section 2511(a)(2); under Section 2511(b),

record demonstrated Children would not suffer irreparable harm if court

terminated Father’s parental rights; compelling testimony established

Children are not bonded with Father, but Children are bonded with pre-

adoptive parents, to whom Children look for their needs and parental


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guidance; case worker testified J.W. did not want to see Father again and I.W.

did not understand concept of father; Father failed to offer evidence

establishing existence of parent-child bond; in determining termination best

serves needs and welfare of Children, court considered that Father has not

met Children’s emotional, physical, and developmental needs, or provided

Children with healthy, safe environment for more than twenty-two months

prior to termination hearing). The record supports both the court’s rationale

and its decision. Accordingly, we affirm based on the Family Court opinion.

     Decrees affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/19




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