J-S16034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE ADOPTION OF O.D.                   :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                                          :
APPEAL OF: R.H., LEGAL FATHER             :
                                          :             No. 1705 MDA 2017

                Appeal from the Decree Entered October 5, 2017,
              in the Court of Common Pleas of Cumberland County
                   Orphans’ Court at No.: 83 Adoptions 2017

BEFORE: BOWES, MURRAY, AND PLATT, JJ.

MEMORANDUM BY PLATT, J.:                            FILED OCTOBER 01, 2018

        R.H. (Father) appeals from the decree of the Court of Common Pleas

of    Cumberland    County,   entered   October    5,   2017, that   involuntarily

terminated his parental rights to O.D. (a male child, born in February of

2/16).1 We affirm on the basis of the trial court opinion.

        We begin by noting that Father is the presumptive and not the natural

father of Child. As the trial court observed:

              In this case, [Father] is the presumptive father of [Child]
        because he was married to [Mother] at the time of [Child’s]
        birth. However, that presumption was rebutted due to [Father’s]
        incarceration at the time of [Child’s] conception, and later DNA
        testing which confirmed that [Father] was not the biological
        father of [Child].




    Retired Senior Judge assigned to Superior Court.

1  The trial court also involuntarily terminated the parental rights of Child’s
biological mother, R.D. (Mother), and Child’s biological father on August 18,
2017. Neither Mother nor Child’s biological father has filed an appeal, nor is
either a party to the instant appeal.
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Trial Court Opinion, 12/7/17, at 9 (footnote omitted).2

      Cumberland County Children and Youth Services (CYS) filed its petition

to terminate Father’s parental rights on August 7, 2017. The trial court held

a hearing on that petition on October 4, 2017.      At that time, Father was

incarcerated in the Taylor Correctional Institute Annex in Florida.        His

minimum release date was October 2019. Upon his release, Father will be

required to register as a sexual offender. N.T. 10/4/17, at 19-20. The trial

court appointed an attorney/guardian ad litem to represent Child, who was

twenty months old at the time of the hearing.3

      CYS placed Child with his maternal grandmother (MGM) by emergency

order on July 1, 2016. (CYS Exhibit 1, Order for Emergency Protective


2  Father also admitted that he is not Child’s biological father. N.T. 11/4/17,
at 17.

3  This Court has recently held that we will address sua sponte the failure of
an orphans’ court to appoint counsel pursuant to 23 Pa.C.S.A. § 2313(a).
See In re K.J.H., 180 A.3d 411, 413 (Pa. Super. 2018). Our Supreme
Court, in In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality),
held that Section 2313(a) requires that counsel be appointed to represent
the legal interests of any child involved in a contested involuntary
termination proceeding.     The Court defined a child’s legal interest as
synonymous with his or her preferred outcome. With respect to this Court’s
holding in In re K.M., 53 A.3d 781 (Pa. Super. 2012), that a GAL who is an
attorney may act as counsel pursuant to Section 2313(a) so long as the dual
roles do not create a conflict between the child’s best interest and legal
interest, the L.B.M. Court did not overrule it.

      In this case, the trial court appointed attorney Marylou Matas to act as
Child’s attorney and guardian ad litem. Our review of the record in this
matter leaves us with no doubt that the preferred outcome for the pre-
verbal Child is adoption. See In re T.S., ___ A.3d ___ (2018 WL 4001825)
(2018).


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Custody, July 6, 2016.) The trial court ratified that placement at a shelter

care hearing held on July 5, 2016, after which Child remained with MGM as

an informal kinship caregiver. The hearing officer found that Mother had

untreated mental health needs and left the shelter where she was staying,

leaving Child in the care of his biological father, who was incapable of caring

for Child due to alleged cognitive limitations. Mother had a history with CYS

due to mental health needs and homelessness.          Her two older children

previously were adjudicated dependent, and were in the care of MGM as a

permanent resource. (CYS Exhibit 1, Master's Recommendation for Shelter

Care, July 5, 2016.)

      At the time of the hearing on the termination of Father’s parental

rights, Child had been with MGM for fifteen months. Child has never been in

Father’s care, and Father has never met nor spoken to him.                N.T.

11/4/2017, at 24.

      The trial court entered its decree involuntarily terminating Father’s

parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2), (3), (11) and (b) on

October 5, 2017. Father filed his notice of appeal and concise statement of

errors complained of on appeal on November 3, 2017.

      Father raises the following questions on appeal:

      [1] Did the [t]rial [c]ourt err in determining that [CYS]
      presented evidence so clear, direct, weighty, and convincing as
      to enable the fact finder to come to a clear conviction without
      hesitancy, of the truth of the precise facts in issue?




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      [2] Did the [t]rial [c]ourt err in determining the best interest of
      the children would be served by terminating the parental rights
      of [Father]?

      [3] Did the [t]rial [c]ourt err as a matter of law and abuse its
      discretion in determining the best interests of the children [sic]
      would be served by terminating the parental rights of Father,
      when the evidence indicated that the primary reason for the
      terminating of his rights was his incarceration?

Father’s Brief, at 4.4

      Our standard of review is as follows:

      In an appeal from an order terminating parental rights, our
      scope of review is comprehensive: we consider all the evidence
      presented as well as the trial court’s factual findings and legal
      conclusions. However, our standard of review is narrow: we will
      reverse the trial court’s order only if we conclude that the trial
      court abused its discretion, made an error of law, or lacked
      competent evidence to support its findings. The trial judge’s
      decision is entitled to the same deference as a jury verdict.

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

      Further, we have stated:

            Where the hearing court’s findings are supported by
      competent evidence of record, we must affirm the hearing court
      even though the record could support an opposite result.
            We are bound by the findings of the trial court which have
      adequate support in the record so long as the findings do not
      evidence capricious disregard for competent and credible

4 We find that Father has waived any challenge to the termination of his
parental rights on the grounds of his incarceration by his failure to raise the
issue in his concise statement of errors complained of on appeal. See
Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 797
(Pa. Super. 2006) (holding that an appellant waives issues that are not
raised in both his or her concise statement of errors complained of on appeal
and the statement of questions involved portion of in his or her brief on
appeal); Pa.R.A.P. 1925(b)(4)(vii) (stating, “Issues not raised in the
Statement and/or not raised in accordance with this paragraph (b)(4) are
waived.”).


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     evidence. 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.
     Though we are not bound by the trial court’s inferences and
     deductions, we may reject its conclusions only if they involve
     errors of law or are clearly unreasonable in light of the trial
     court’s sustainable findings.

In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).

     The trial court terminated Father’s parental rights pursuant to 23

Pa.C.S.A. § 2511(a)(2), (3), (11), and (b).         In order to affirm the

termination of parental rights, this Court need only agree with any one

subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.

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

     Requests to have a natural parent’s parental rights terminated are

governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:

     § 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:

                                 *    *    *
              (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


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              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)(2) and (b).

     Here, the trial court concluded that termination was appropriate under

§ 2511(a)(2). 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).           There the Pennsylvania Supreme Court

announced under what is now section 2511(a)(2), that the petitioner for

involuntary    termination   must    prove   “[t]he   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.” Id. at 173.

     It is well-settled that a party seeking termination of a parent’s rights

bears the burden of proving the grounds to so do by “clear and convincing

evidence,” a standard which requires evidence that is “so clear, direct,

weighty, and convincing as to enable the trier of fact to come to a clear


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conviction, without hesitance, of the truth of the precise facts in issue.” In

re T.F., 847 A.2d 738, 742 (Pa. Super. 2004). Further,

      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 his or her
      physical and emotional needs.

In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (internal

citations omitted).

      The Adoption Act provides that a trial court “shall give primary

consideration to the developmental, physical and emotional needs and

welfare of the child.”   23 Pa.C.S.A. § 2511(b).    The Act does not make

specific reference to an evaluation of the bond between parent and child but

our case law requires the evaluation of any such bond. See In re E.M., 533

Pa. 115, 620 A.2d 481 (1993). However, this Court has held that the trial

court is not required by statute or precedent to order a formal bonding

evaluation performed by an expert.     In re K.K.R.-S., 958 A.2d 529, 533

(Pa. Super. 2008).

      In this appeal, Father argues that he was not given an opportunity to

prove to CYS that he could properly parent and care for Child.         Father

asserts that he testified that his plan was to return to Pennsylvania upon his

release, reside with his Mother until he can get a place of his own, obtain

employment, and care for his children as a family. Father alleges that CYS



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did not present any evidence that he would not be able to accomplish these

matters, other than the fact that he is currently incarcerated.         Father

contends that incarceration alone is not sufficient basis to terminate parental

rights. See Father’s Brief, at 7.

      As previously noted, Father waived any challenge to the consideration

of his incarceration by failing to raise such a challenge in his concise

statement. Nevertheless, we find the consideration of Father’s incarceration

appropriate.   In regard to incarcerated parents, our Supreme Court has

stated:

             [I]ncarceration 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 [sic] the causes of the incapacity cannot or
      will not be remedied.

In re Adoption of S.P., 309 Pa. 328-329, 47 A.3d 817, 828 (2012).

                                    *    *    *

             [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. at 605], 515
      A.2d at 891 (“[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) supported by
      mother’s repeated incarcerations and failure to be present for


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      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). If a
      court finds grounds for termination under subsection (a)(2), a
      court must determine whether termination is in the best
      interests of the child, considering the developmental, physical,
      and emotional needs and welfare of the child pursuant to §
      2511(b). In this regard, trial courts must carefully review the
      individual circumstances for every child to determine, inter alia,
      how a parent’s incarceration will factor into an assessment of the
      child’s best interest.

616 Pa. at 332, 47 A.3d at 830-831.5

      We have examined the record in this case and are satisfied that it

contains sufficient competent, credible evidence to support the termination

of Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2). We have

also examined the trial court opinion in light of the record and are fully

satisfied that it is a complete and correct analysis of the issues Father has

raised.

      Accordingly, we affirm the decree of the Court of Common Pleas of

Cumberland County that terminated Father’s parental rights pursuant to 23

Pa.C.S.A. §§2511(a)(2) and (b) on the basis of the concise, thorough, and

well-written opinion of the Honorable Christylee L. Peck.

      Decree affirmed.




5The Supreme Court cited its decision in In re: Adoption of McCray, 450
Pa. 210, 331 A.2d 652, 655 (1975), for the proposition that termination may


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/01/2018




be appropriate for an incarcerated parent who has failed to perform his
parental duties for a six-year period. Id., at 328, 47 A.3d at 828.


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