J-S01001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.S.P., a Minor, :         IN THE SUPERIOR COURT OF
                                     :               PENNSYLVANIA
                                     :
                                     :
                                     :
                                     :
APPEAL OF: M.P., Father,             :              No. 1805 EDA 2015

                Appeal from the Order entered May 12, 2015
           in the Court of Common Pleas of Philadelphia County,
             Family Court Division, No(s): 51-FN-002952-2012;
                          CP-51-AP-0000043-2015

IN THE INTEREST OF: Q.C.P., a Minor, :         IN THE SUPERIOR COURT OF
                                     :               PENNSYLVANIA
                                     :
                                     :
                                     :
                                     :
APPEAL OF: M.P., Father,             :              No. 1806 EDA 2015


                Appeal from the Order entered May 12, 2015
           in the Court of Common Pleas of Philadelphia County,
             Family Court Division, No(s): 51-FN-002952-2012;
                          CP-51-AP-0000044-2015

BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED JANUARY 28, 2016

     M.P. (“Father”) appeals from the Order granting the Petition filed by

the Philadelphia Department of Human Services (“DHS”) involuntarily

terminating his parental rights to his minor female children, Q.C.P. and

M.S.P. (collectively, “Children”), twins born in December 2008, pursuant to

Section 2511(a)(1), (2), (5), (8) and (b), and changing Children’s
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permanency goal to adoption.1 We affirm.

      The trial court aptly summarized the factual and procedural history of

this case, which we adopt for the purpose of this appeal.    See Trial Court

Opinion, 8/13/15, at 1-6.

      Relevantly, Father was convicted of Involuntary Deviate Sexual

Intercourse in 1980 and was in prison until December 2003.         Upon his

release, Father was required to register as a Megan’s Law Offender for 10

years. Father spent 5 years in jail, beginning in September 2009, as a result

of his failure to register as a Megan’s Law Offender. Consequently, Father

was in prison for a majority of Children’s lives.

      Children were adjudicated dependent on November 26, 2012, after

Mother texted a neighbor to indicate that she had relapsed from drug

treatment, and instructed the neighbor to contact DHS.2 DHS obtained an

Order of Protective Custody, and thereafter, Children remained under the

care of DHS.

      Children were placed in a pre-adoptive home in September 2014. On

January 20, 2015, DHS filed an Involuntary Termination of Parental Rights

(“ITPR”) Petition against Father under 23 Pa.C.S.A. § 2511(a)(1), (2), (5),

1
   The Order terminated the parental rights of both Father and C.D.
(“Mother”). Trial Court Opinion, 8/13/15, at 1 n.1. Mother does not appeal
from the Order.
2
  Previously, in September 2011, Mother called in a General Protective
Services report on herself after an all-day drug binge during which she left
Children unsupervised and without food or water. Mother subsequently
completed both inpatient and outpatient drug treatment programs.


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(8) and (b).     The Petition also changed Children’s permanency goal to

adoption. The trial court conducted hearings on February 2, 2015, and April

28, 2015.    On May 12, 2015, the trial court terminated Father’s parental

rights under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b), and changed

Children’s permanency goal to adoption.      Father filed a timely Notice of

Appeal and a Pennsylvania Rule of Appellate Procedure 1925(b) Concise

Statement.

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

      I. Did the [t]rial [c]ourt err in terminating [Father’s] parental
      rights under Pa.C.S.[A. §] 2511?

      II. Did the [t]rial [c]ourt err in finding that termination of
      parental rights best served [C]hildren’s developmental, physical
      and emotional needs under [subsection] (b)?

      III. Did the [t]rial [c]ourt err in changing [C]hildren’s goal to
      adoption?

Father’s Brief at vi.

      We review an appeal from the termination of parental rights in

accordance with the following standard:

      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).




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      Termination of parental rights is controlled by section 2511 of the

Adoption Act. See 23 Pa.C.S.A. § 2511. The burden is upon the petitioner

“to prove by clear and convincing evidence that its asserted grounds for

seeking the termination of parental rights are valid.” In re R.N.J., 985 A.2d

273, 276 (Pa. Super. 2009). “[C]lear and convincing evidence is defined as

testimony that 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.”   Id. (citation and quotation marks omitted).

Further, 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., 855 A.2d 68, 73-74 (Pa.

Super. 2004). If the competent evidence supports the trial court’s findings,

“we will affirm even if the record could also support the opposite result.” In

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

      Satisfaction of any one subsection of Section 2511(a), along with

consideration of Section 2511(b), is sufficient for the involuntary termination

of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).   In this case, we will review the trial court’s decision to terminate

Father’s parental rights based upon Section 2511(a)(1) and (b), which state

the following:




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     § 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.

                                     ***

     (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.

           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. … [P]arental duty is best understood in relation
     to the needs of a child. … [T]his court has held that the parental
     obligation is a positive duty which requires affirmative
     performance. This affirmative duty … requires a continuing
     interest in the child and a genuine effort to maintain
     communication and association with the child.

In the Interest of J.T., 983 A.2d 771, 776-77 (Pa. Super. 2009) (internal

quotations and citations omitted).




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      In regard to incarceration and the preservation of parental rights, we

have stated the following:

      [I]ncarceration of a parent does not, in itself, provide sufficient
      grounds for termination of parental rights; however, an
      incarcerated parent’s responsibilities are not tolled during [her]
      incarceration. … [P]arental duty requires that the parent not
      yield to every problem, but must act affirmatively, with good
      faith interest and effort, to maintain the parent-child relationship
      to the best of [her] ability, even in difficult circumstances.

In the Interest of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (citations

omitted); see also In re S.P., 47 A.3d 817, 828 (Pa. 2012). 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 re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citations omitted).

      In his first claim, Father asserts that the trial court erred in granting

the ITPR Petition because DHS did not satisfy, by clear and convincing

evidence, that his parental rights should be terminated under Section

2511(a). Father’s Brief at 6. As to the requirements of subsection (a)(1),

Father argues that the trial court relied almost entirely on his incarceration

as evidence of a settled intent to relinquish parental claim and failure to

perform parental duties. Id. at 7-8.       Father claims that he has made

efforts to be reunified with Children by sending cards, calling Children while

in placement, and communicating with DHS workers about Children. Id. at



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8-9. Father also asserts that he has participated in the Family Service Plans

by enrolling in a parenting class. Id. at 8.

      The trial court appropriately applied Section 2511(a)(1) to this case,

and we adopt its Opinion as to that subsection for the purposes of this

appeal. See Trial Court Opinion, 8/13/15, at 7-9; see also In re B., N.M.,

856 A.2d 847, 858 (Pa. Super. 2004) (concluding that father showed a

settled purpose of relinquishing his parental rights where he sat idle for most

of child’s life while mother performed all parental duties, and that father’s

wish to not have his “parental rights terminated was insufficient to protect

those rights without acting affirmatively to foster a parental relationship with

[c]hild during his incarceration.”).

      In his second claim, Father contends that the trial court erred in

determining that termination served Children’s best interests under Section

2511(b).    Father’s Brief at 13.      Father argues that the social worker’s

testimony regarding Children’s relationship with Father did not rise to the

level of clear and convincing evidence. Id. at 13-14. Father claims that “it

is hard to believe” that Children are completely bonded with the foster

mother after living with her for less than a year. Id. at 14. Further, Father

asserts that adoption in not in Children’s best interests because he is now

ready, willing, and able to care for them. Id.

      The trial court set forth the relevant law regarding Section 2511(b),

and determined that it was in Children’s best interest to terminate Father’s



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parental rights. See Trial Court Opinion, 8/13/15, at 12-13; see also In re

T.S.M., 71 A.3d 251, 268 (Pa. 2013) (stating that “courts considering

termination must also consider whether the children are in a pre-adoptive

home and whether they have a bond with their foster parents.”). Upon our

review, the trial court appropriately applied Section 2511(b) to this case,

and we adopt its Opinion for the purposes of this appeal. See Trial Court

Opinion, 8/13/15, at 12-13.

      In his third claim, Father asserts that the trial court erred in changing

Children’s permanency goal to adoption. Father’s Brief at 14. Father argues

that if the trial court erred in terminating his parental rights, it also erred in

determining that DHS should not continue to provide Father with services.

Id. at 15.

            When we review a trial court’s order to change the
      placement goal for a dependent child to adoption, our standard
      is abuse of discretion. In order to conclude that the trial court
      abused its discretion, we must determine that the court’s
      judgment was manifestly unreasonable, that the court did not
      apply the law, or that the court’s action was a result of partiality,
      prejudice, bias or ill will, as shown by the record. We are bound
      by the trial court’s findings of fact that have support in the
      record. The trial court, not the appellate court, is charged with
      the responsibilities of evaluating credibility of the witnesses and
      resolving any conflicts in the testimony. In carrying out these
      responsibilities, the trial court is free to believe all, part, or none
      of the evidence. When the trial court’s findings are supported by
      competent evidence of record, we will affirm even if the record
      could also support the opposite result.

In re N.C., 909 A.2d 818, 822-23 (Pa. Super. 2006) (citations and

quotation marks omitted).



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             In a change of goal proceeding, the trial court must focus
      on the child and determine the goal in the child’s best
      interest. . . . As a practical and legal matter, an order by the
      juvenile court changing the child’s placement goal from
      reunification to adoption ends any dispute that may exist
      between [DHS] and the parent as to the adequacy of [DHS’s]
      services aimed at reuniting the parent with [his] children and, of
      course, at to whether [DHS] had selected the most appropriate
      goal for this family. By allowing [DHS] to change its goal to
      adoption, the trial court has decided that [DHS] has provided
      adequate services to the parent but that [he] is nonetheless
      incapable of caring for the child and that, therefore, adoption is
      now the favored disposition. In other words, the trial court order
      is the decision that allows [DHS] to give up on the parent.

In the Interest of A.L.D., 797 A.2d 326, 339 (Pa. Super. 1996) (citations

omitted). “Matters of custody and placement for a dependent child must be

decided under the standard of the child’s best interests, not those of his or

her parents.” In re N.C., 909 A.2d at 823 (emphasis in original).

      Upon our review, we conclude that there is adequate support in the

record for the trial court’s decision to change Children’s permanency goal to

adoption. Having already determined that it is in Children’s best interests to

terminate Father’s parental rights, we must also agree that it is in Children’s

best interests to change their permanency goal to adoption.

      Based upon the foregoing, the trial court did not err in granting the

ITPR Petition and changing Children’s permanency goal to adoption.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/28/2016




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