J-S41044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: A.R.L., JR.                      :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
                                        :
                                        :
APPEAL OF: A.T.G., FATHER               :        No. 355 MDA 2017

                   Appeal from the Decree January 30, 2017
              In the Court of Common Pleas of Lancaster County
                    Orphans’ Court at No(s): 2206 of 2016


BEFORE:       GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                          FILED JUNE 22, 2017

      Appellant, A.T.G. (“Father”), appeals from the decree entered in the

Lancaster County Court of Common Pleas, Orphans’ Court, which changed

the family goal to adoption and granted the petition of the Lancaster County

Children and Youth Social Service Agency (“Agency”) for involuntary

termination of Father’s parental rights to his minor child, A.R.L., Jr.

(“Child”).   We affirm in part and remand with instructions and for further

proceedings if necessary.

      In its opinion, the Orphans’ Court fully and correctly set forth the

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

reason to restate them.

      Father raises one issue for our review:

       DID THE [ORPHANS’] COURT ERR IN FINDING THAT THE
       AGENCY MET ITS BURDEN OF PROOF THAT INVOLUNTARY
       TERMINATION IS WARRANTED UNDER 23 PA.C.S.
       SECTION 2511(A)(1) AND (2)?
_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S41044-17



(Father’s Brief at 7).

      Appellate review of termination of parental rights cases implicates the

following principles:

         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

                                      -2-
J-S41044-17


         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).

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)).

      The Agency filed a petition for the involuntary termination of Father’s

parental rights to Child 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.

23 Pa.C.S.A. § 2511(a)(1)-(2).       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

                                     -3-
J-S41044-17


            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.

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

                                        -4-
J-S41044-17


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). “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.    See also In re K.Z.S., 946 A.2d 753, 758 (Pa.Super. 2008)

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

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

parental rights”).

      “Under section 2511, the trial court must engage in a bifurcated

process.” In re I.J., supra at 10.


                                      -5-
J-S41044-17


        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.

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

        [A] best interest of the child analysis under [section]
        2511(b) requires consideration of intangibles such as love,
        comfort, security, and stability. To this end, this Court has
        indicated that the trial 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.     Moreover, in performing a “best interests”
        analysis[, t]he court should also consider the importance
        of continuity of relationships to the child, because severing
        close parental ties is usually extremely painful. The court
        must consider whether a natural parental bond exists
        between child and parent, and whether termination would
        destroy an existing, necessary and beneficial relationship.
        Most importantly, adequate consideration must be given to
        the needs and welfare of the child.

In re I.J., supra at 12 (internal citations and quotation marks omitted)

(remanding    for   comprehensive   best   interests   analysis   under   Section

2511(b); although court reviewed evidence of record regarding relationship

between child and mother, which appears to reflect that no natural parental

bond exists, court did not reach definitive finding on whether such bond

exists; on remand, court had discretion to take additional testimony and

receive more evidence to complete best interests analysis).

     “When conducting a bonding analysis, the court is not required to use

                                     -6-
J-S41044-17


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). “While

a parent’s emotional bond with his… 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.”   In re N.A.M., 33 A.3d 95, 104 (Pa.Super. 2011).     “The mere

existence of an emotional bond does not preclude the termination of

parental rights.”    Id.   Moreover, a “parent’s own feelings of love and

affection for a child, alone, do not prevent termination of parental rights.”

In re Z.P., supra at 1121.      “In cases where there is no evidence of any

bond between the parent and child, it is reasonable to infer that no bond

exists. The extent of any bond analysis, therefore, necessarily depends on

the circumstances of the particular case.” In re K.Z.S., supra at 762-63.

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

applicable law, and the well-reasoned opinion of the Honorable Leslie

Gorbey, we conclude Father’s issue merits no relief.     The Orphans’ Court

opinion comprehensively discusses and properly disposes of the question

presented.    (See Orphans’ Court Opinion, filed March 28, 2017, at 6-9)

(finding: under Section 2511(a)(1), in the six months immediately preceding

filing of petition for involuntary termination of Father’s parental rights,

Father’s only effort on behalf of Child included taking DNA test a full year


                                     -7-
J-S41044-17


after he was first notified that he might be Child’s biological father; 1 Father

missed 3 appointments for testing because “he was not good with dates”;

court recognized that Child was forced to remain in placement for almost

two years, while continuing to wait for Father to “step up”; under Section

2511(a)(2), Father’s efforts were not even minimal; had Father attended

genetic testing when originally scheduled, the Agency would have been able

to assess Father and make necessary service referrals before Child remained

in placement for 15 months; Father was solely responsible for delay in

genetic testing; Father’s continued disinterest in caring for Child supports

court’s termination decision under subsection (a); court cannot gamble with

safety and welfare of Child).         Accordingly, as to Father’s issue on appeal

regarding the sufficiency of the evidence to support termination of his

parental rights under 23 Pa.C.S.A. § 2511(a)(1)-(2), we affirm on the basis

of the Orphans’ Court opinion.

       Nevertheless, careful review of the certified record reveals the court

did not place on the record any “best interests” analysis under Section

2511(b). We recognize Father did not challenge the court’s decision under

Section 2511(b) on appeal.           Still, the Orphans’ Court’s consideration of

____________________________________________


1
  Father criticizes the court’s mention of Mother’s report, as presented in a
February 2016 permanency review hearing petition, that Father was not
interested in submitting to any testing. Nothing in the record, however,
indicates this reference was a dispositive factor in the Orphans’ Court’s final
decision.



                                           -8-
J-S41044-17


Section 2511(a) and (b) is necessary for the involuntary termination of

parental rights. Therefore, we are constrained to remand the matter to the

Orphans’ Court for a full Section 2511(b) analysis. See In re I.J., supra;

In re K.Z.S, supra.       On remand, the court has the discretion to take

additional testimony and receive more evidence to complete the Section

2511(b) best interests analysis.     See In re I.J., supra.   Accordingly, we

affirm the Orphans’ Court decision under 23 Pa.C.S.A. § 2511(a) but remand

for the court’s consideration and analysis under 23 Pa.C.S.A. § 2511(b) and

further proceedings, if necessary.

      Decree affirmed in part; case remanded with instructions. Jurisdiction

is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2017




                                      -9-
                                                                                        Circulated 06/09/2017 01:02 PM




   IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY PENNSYLVANIA
                                    ORPHANS' COURT DIVISION


 IN RE: A.R.L., Jr.                                        Docket No: 2206 OF 2016

                                                           SUPERIOR CT NO: 355 MDA 2017

BY GORBEY, J.

                                        OPINION SUR APPEAL

                                          Procedural History

             This matter last came before this Court on the OcAdoer            l ct,   2016 Petition filed

by the Lancaster County Children and Youth Social Service Agency ("Agency") to

terminate the parental rights of A.T.G. ("Father") to A.R.L., Jr. ("A."), born May                 "   2014.

N. T.   at   6. Y.D. ("Mother") and    Father are the biological parents of A. and his brother

A.G., born January          2010.     1/30117 N.T. at 6.

         This family's contact with the Court in the dependency matter began with the

Agency's filing for physical and legal custody of A.R.L. and his brother, granted by the

Court on April 30, 2015.1 The Agency then filed a OcAcker 101, 2016 Petition to

terminate the parental rights of Father.2 Several hearings were continued and

rescheduled, and the hearing was concluded on January 30, 2017; Father was present

with counsel. That day, a Decree was issued to terminate the parental rights of Father




         1This case is also docketed to CP-36-DP-92-2015 in the Juvenile Court, and was incorporated
into the instant Orphans' Court matter by Order dated November 28, 2016. For clarity's sake, we refer to
either the 0C -docket or the DP -docket, and the date and title of the document cited.

         2Mother's parental rights were terminated by decree on January 10, 2017.

                                                    1
to A.R.L. On February 27, 2017, Father filed the instant appeal with the Pennsylvania

Superior Court.

                                                 Factual History

          In April of 2015, the Agency received a report of a concern for the welfare of A.

and his brother; the boys were living with Mother and A.L. (A.'s "Presumptive Father"),

and the concerns focused on a safety concern with hoarding in the home, unstable

housing, and Mother's mental health history.              DP-docket 5/15/5          Order, 1/9/17 N.T.        at


13, 1/30/17 N.T. at 6-7.         The Agency sent A.'s brother A.G. to live with his paternal

grandmother,               .   ("Grandmother") in Ohio, and a family friend was caring for A. until

the housing situation could be resolved.' DP-docket                   5/1/15    Order. Shortly afterwards,

on April 30, that family friend was no longer able to care for A., but could not locate

Mother or Presumptive Father. DP-docket                5/1/15 Order, 1/30/17 N.        T.   at   8-9. As a

result, the Court issued a placement Order on May                1,   2015. A June 8, 2015 Child

Placement Plan provided goals for A., Mother, and Presumptive Father, and

Grandmother was identified as the kinship resource for A.'s brother, A.G. 1/9/17 N.T.                              at


14, 18.


          In July   of 2015, it was confirmed that Presumptive Father was not the biological

father of A. DP-docket          9/21/15 Petition, 1/9/17 N.T. at 6, 9, 20,         1/30/17 N.T.       at   7-8. On

August 25, 2015, an Order directing genetic testing was mailed to Father                         in

Youngstown, Ohio. 1/9/17 N.T.            at 6,   30, 1/30/17 N.T.     at   9.   The Agency caseworker

also spoke with Father at this time, regarding the need for genetic testing. 1/9/17 N.T.


         3At this time, it was believed that A. and A.G. were half-brothers, with the same Mother, but
different fathers, such that Grandmother was the grandmother of AG., but not of A.

                                                      2
at 10, 14, 20, 44. Father agreed, at that time, to submit to testing; the Agency then

arranged for out-of-state testing. 1/9/17 N.T. at 21, 44. A genetic test was scheduled

for Father on October 20 in Ohio, and notice was mailed to the Quentin Drive address

and signed -for by Father on October 3. 1/9/17 N.T. at 30, 32-33, 35-36, 41. In

September, the Agency placed two calls and left messages with Father, but those calls

were not returned. DP-docket 9/21/15 Petition, 1/9/17 N.T. at 15, 1/30/17 N.T. at 24. In

October of 2015, at a Permanency Review hearing, any visits for A. with any father

were suspended, pending identification of a father. Father missed the October 20

genetic test, and made no effort to reschedule. 1/9/17 N.T. at 30. A February 2016

Permanency Review hearing Petition indicated that Father told Mother he "does not

want to be tested," and the Agency's call to Father's phone went unanswered.

       Father subsequently failed to appear for genetic testing on three occasions

scheduled over the year. 1/9/17 N.T. at 6, 11, 14-15 , 22, 26, 1/30/17 N.T. at 24, 49,

50. The Agency made a UIFSA filing in December of 2015, because Father was out of

the Agency's jurisdiction, and Ohio followed up. 1/9/17 N.T. at 34-35, 39. Father

offered no explanation to the Agency, despite being informed of the importance of the

genetic testing. 1/9/17 N. T. at 22, 24, 25.

       In August   of 2016, over a year after the Order directing genetic testing and after

Father agreed to be tested, Father submitted to    a   DNA test which proved him to be A.'s

biological father. 0C -docket Agency Ex. 2, 1/9/17 N.T. at 39, 1/30/17 N.T. at 6-7.   9, 10,

24, 26, 49-50. The results were provided to Father sometime after the August 31, 2016

Notary date, and were filed with the Ohio Courts on September 19, 2016. DP-docket



                                               3
Agency Ex.   2,   1/9/17. On September 12, 2016, at a Permanency Review hearing, the

Agency noted that A. had been in placement for 15 months and that            it   was preparing a

Termination of Parental Rights Petition; Father was not notified of that hearing because

he was not yet identified, in this jurisdiction, as A.'s father. 1/9/17 N.T. at 8, 9. In

October of 2016, the Agency received the results of the genetic testing and Father was

identified as A.'s biological father. 1/9/17 N.T. at    7,   10.

       Father was consistently notified of hearings and decisions after he was identified

as A.'s biological father. 1/9/17 N.T. at 8, 9, 10, 1/30/17 N.T. at 10. A preliminary

Decree was filed October 19, 2016, and notices were mailed to the parents, including

Father at his Youngstown, Ohio address; Father's mother, Grandmother, signed for

service of the Decree. 0C -docket Agency Ex.       1,   11/28/16. The Courts November 28,

2016 Order, incorporating the dependency matter into the termination matter was also

mailed to Father. A home study was conducted, pursuant to an Interstate Compact

agreement and because Grandmother offered to serve as a kinship resource, but the

address provided was that of Grandmother, and was not Father's primary residence.

1/9/17 N.T. at 17-18, 1/30/17 N.T. at 12-14. When the Ohio -agency representative

arrived to begin a home evaluation on January 11, 2017, she learned that Father was

not living at that address. 1/9/17 N.T. at 41, 1/30/17 N.T. at 32, 41.

       A January 9, 2017a dispositional hearing included Father because "he was just

determined to be the father through genetic testing." DP-docket 1/10/17 Order. At that

hearing, it was noted that Father had failed to appear for genetic testing on more than

one occasion. 0C -docket Agency Ex. 2, 1/9/17, 1/9/17 N.T. at       6, 11.        Father testified



                                               4
that he missed the October 20, 2015 testing date because he put the notice in the glove

box of his car and forgot about   it.   1/9/17 N.T. at 45, 52-53. He tried to go the next day,

but became lost and went to the "wrong courthouse;" when he found the testing site, he

was told to reschedule the test, and it took "a aoupic of months" to get it rescheduled.

1/9/17 N.T. at 45, 53-54. When Father received notice of a second testing

appointment, he "missed it again because [he] got called          in   early for work that day."

1/9/17 N.T. at 45-46, 53, 54. At some point, Father arrived at the testing location and

asked to do the testing, and was scheduled for a third appointment; he missed it again,

noting that he is "not good with dates." 1/9/17 N.     T.   at 46, 53, 56.

       At that same hearing, Father was also given no reunification goals; the Agency

noted that A. had been in placement for 18 months at that time, over the 15 -month

statutory period, that Father made little effort to be genetically tested, and giving Father

plan goals would add even more time to A.'s placement. 1/9/17 N.T. at 10-11, 18-19,

22-24, 1/30/17 N.T. at 14-16, 18-20, 21, 25-26. The Agency also noted that A. was

placed at age one, and was two -and -one -half-years old at this time, having spent over

half of his life in placement, and had successfully bonded with his resource parents who

are a potential permanent home. 1/30/17 N.T. at 16-18.

       The Court signed the January 30 decree terminating Father's parental rights to

A., concluding that Father's failure to submit to genetic testing within a reasonable time

evidenced parental neglect of his son      A as well as a purpose to relinquish parental
rights. 1/9/17 N.T. at 59-60.




                                                 5
                                            ISSUE

         Whether a termination of parental rights is appropriate when the child has been

in   placement for almost two years during which time Father failed to submit to genetic

testing such that he could not be identified as the child's father and was thus not

available to care for the child?

                                         ANALYSIS

         Parental rights may be terminated by statute; the pertinent statute, 23 Pa. C.S.

§2511(a), provides for termination of those rights when:

         (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.

"In termination cases, 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 Adoption of M.R.B., 25 A.3d 1247, 1251 (Pa. Super. 2011). "The standard

of clear 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." M.R.B., supra, at 1251.

         On appeal, Father asserts that the Court's Order is not supported by evidence of

Father's unreadiness, unwillingness or inability to care for his child, where paternity was




                                               6
only established two months before the Petition to Terminate Parental Rights was filed.

A review of the record, however, indicates otherwise.

                                       23 Pa.C.S. §2511(a)(1)

        The language of 23 Pa.C.S. §2511(a)(1) requires the Court to examine               a


parent's conduct "continuing for       a   period of at least six months immediately preceding

the filing of the petition" to see if that conduct "has evidenced        a   settled purpose of

relinquishing parental claim to a child or has refused or failed to perform parental

duties."

        At the time of this writing, A. has been in placement for 23 months, including 18

months between the April 30, 2015 dependency determination and the October                     19.


2016 Petition to Terminate Parental Rights. In the six months immediately preceding

the filing of the Petition, Father's only efforts on behalf of A. included finally taking an

August     2:L1   2016 DNA test, taken a full year after he was first notified that he was

possibly A.'s Father. Father had previously told Mother that he was not interested in

submitting to any testing, and Father missed three appointments for that testing

because 'he was not good with dates.' Conceivably, at the 15 -month mark, in July of

2016, the Agency could have petitioned to terminate parental rights, and Father would

not have even known, because he had not yet submitted to the genetic testing by that

time.

        This Court is concerned that forcing A. to remain        in   the uncertainty of placement,

after almost two years already in placement, while continuing to wait for Father to step

up as a father, would be harmful to A. The requirements of 23 Pa.C.S. §2511(a)(1)

have been met.

                                                    7
                                  23 Pa.C.S. §2511(a)(2)

        The language of 23 Pa.C.S. §2511(a)(2) requires the Court to examine whether

a   parent's "repeated and continued 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 the conditions and causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied by the parent." "The focus of the

termination proceeding is on the conduct of the parent and whether his conduct justifies

termination of parental rights." In re B.,N.M., 856 A.2d 847, 854-55 (Pa. Super. 2004).

        Father's efforts are not even minimal. For over a year of A.'s placement, Father

had not even been identified, due to his own refusal and failures to arrive for testing.

Father arrived for testing the month after the statutory 15 -month placement threshold.

The Agency indicated that "had [Father] attending the genetic testing when it was

originally scheduled," it would have been able to assess Father and make any

necessary service referrals before A. had been in care for 15 months" but that Father

was a "blank slate" and responsible for the "delay on   - on getting the DNA test."     1/30/17

N.T. at 25-26, 21-22.

         Parental duty is "best understood in relation to 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 development of the child.... [T]he parental

obligation is a positive duty which requires affirmative performance.". In re C.S., 761

A.2d 1197 (Pa. Super. 2000). In re G.P-R, 851 A.2d 967 (Pa. Super. 2004). "Where

the child is in foster care, this affirmative duty requires the parent to work towards the

return of the child by cooperating with the Agency to obtain the rehabilitative services

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necessary for him to be capable of performing his parental duties and responsibilities."

In re G.P.R., 851 A.2d 967, 977 (Pa. Super. 2004), summarizing In re: William L., 383

A.2d 1228, 1233-34 (Pa. 1978).

          Here, Father's continued disinterest in caring for his child supports the

termination decision made by the Court. This Court cannot gamble with the safety and

welfare of the child. Father has had      a   year of ample opportunities to claim his child to

prove himself to be an acceptable parent but has failed to do so. The requirements of

23 Pa.C.S. §2511(a), sections      1   and 2 have been met.


                                          CONCLUSION

          For the reasons stated above, the Court concludes that it is appropriate to

terminate Father's parental rights to A.R.L., Jr. The Clerk of the Orphans' Court is

directed to transmit the record, with the incorporated docket, to the Superior Court.

                                                       BY THE COURT:




DATED:         March 28, 2017                          LESLIE GORBEY, JUDGE

Attest:

Copies to:
      John P. Stengel, Esquire
      Daniel H. Shertzer, Jr., Esquire
      Laura McGarry, Esquire




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