J-S88017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: N.T.L., T.M.L.,        :   IN THE SUPERIOR COURT OF
    D.N.L. AND M.E.J.D.L., MINORS              :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: D.T.B., FATHER                  :
                                               :
                                               :
                                               :
                                               :   No. 751 EDA 2016

                     Appeal from the Decree February 5, 2016
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): CP-51-AP-0000769-2015,
              CP-51-AP-0000770-2015, CP-51-AP-0000771-2015,
              CP-51-AP-0000772-2015, CP-51-DP-0000323-2014,
              CP-51-DP-0001341-2014, CP-51-DP-0001342-2014,
                              CP-51-DP-0001343-2014


BEFORE: OLSON, RANSOM, and STRASSBURGER1, JJ.

MEMORANDUM BY RANSOM, J.:                              FILED January 12, 2017

        Appellant, D.T.B. (“Father”), appeals from the order in the Philadelphia

County Court of Common Pleas, which terminated his parental rights to his

minor children, M.E.J.D.L., N.T.L., T.M.L., and D.N.L., pursuant to the

Adoption Act, 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8), and 2511(b). After a

thorough review of the record, we affirm.

        The relevant facts are as follows:

        The family in this case became known to [the Department of
        Human Services] DHS on November 11, 2013, when DHS
        received a substantiated General Protective Services (“GPS”)
        report alleging that Mother’s home was without heat or food, and
____________________________________________


1
    Retired Senior Judge assigned to the Superior Court.
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      that [M.E.J.D.L.] had cerebral palsy and was left alone or with
      inappropriate caregivers. Another GPS report was received by
      DHS on December 6, 2013, alleged that [M.E.J.D.L.] was missing
      medical appointments. Over the course of 2013, [M.E.J.D.L.]
      missed thirteen medical appointments. DHS filed an urgent
      petition for [M.E.J.D.L.] on February 5, 2014. [M.E.J.D.L.] was
      adjudicated dependent and committed to DHS on March 7, 2014.
      She was placed with E.L. (“Foster Mother”), her maternal
      grandmother.     [M.E.J.D.L.] is a very medically needy child.
      Mother was present at the time of the adjudication, where the
      court ordered her to attend substance abuse treatment. In
      March 2014, Mother began attending Caton Village, an inpatient
      substance abuse treatment facility. Mother was allowed to have
      the three other Children reside with her at the inpatient facility.
      Mother’s goals under the April 16, 2014, Family Service Plan
      (“FSP”) were to participate in family therapy, stabilize mental
      health, attend drug and alcohol treatment, maintain sobriety and
      secure safe living conditions for the Children. Father’s FSP goals
      were to obtain housing, attend all hearings and ensure the
      Children attend all medical appointments. On May 9, 2014,
      another GPS report alleged that Mother used physical discipline
      against the Children. The treatment facility sought to transfer
      Mother elsewhere because of altercations with other patients.
      Foster Mother removed the three children from the treatment
      facility on May 20, 2014, and Mother left the program the same
      day without successfully completing treatment, against medical
      advice. On June 2, 2014, DHS filed urgent petitions for N.T.L.,
      T.M.L. and D.N.L.       These three children were adjudicated
      dependent on June 18, 2014. They were committed to DHS and
      placed with Foster Mother. The court also ordered Mother and
      Father to the Achieving Reunification Center (“ARC”) for
      additional services, and Mother was ordered to the Clinical
      Evaluation Unit (“CEU”) for forthwith drug screen and dual
      diagnosis assessment. Both parents were offered supervised
      visitation. Over the next year, Mother and Father were found
      non-compliant at every permanency review. The trial court
      found at every review that DHS had made reasonable efforts to
      reunify the family. DHS filed petitions to involuntarily terminate
      Mother’s and Father’s parental rights, and to change the
      Children’s permanency goals to adoption on October 29, 2015.

Trial Court Opinion, 4/20/16, at 1-2.



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      At the hearing, the trial court terminated Father’s parental rights as to

all four children pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), as

well as 2511(b), and changed the children’s goal to adoption. On March 7,

2016, Father’s counsel timely filed a notice of appeal as well as a statement

pursuant to Pa.R.A.P. 1925(b).

      Father raises the following issues on appeal:

      (1)   Did the court below err in finding that grounds for
            termination of parental rights had been proven by “clear
            and convincing evidence”?

      (2)   Did the court below err in finding that the Department of
            Human Services (hereinafter, “DHS”), had met its burden
            in proving grounds under 23 Pa.C.S.A. §§ 2511(a)(1), (2),
            (5) and (8)?

      (3)   Did the court below err in finding that DHS had met its
            burden to prove that termination would be in the children’s
            best interest, under § 2511(b)?

      (4)   Did the court below err in denying Due Process and Equal
            Protection of Law to Appellant, [D.T.B.], Father, as
            guaranteed by the Constitution of the United States and
            the Commonwealth of Pennsylvania?

Our standard of review regarding orders terminating parental rights is as

follows:

      When reviewing an appeal from a decree terminating parental
      rights, we are limited to determining whether the decision of the
      trial court is supported by competent evidence. Absent an abuse
      of discretion, an error of law, or insufficient evidentiary support
      for the trial court’s decision, the decree must stand. Where a
      trial court has granted a petition to involuntarily terminate
      parental rights, this Court must accord the hearing judge’s
      decision the same deference that we would give to a jury
      verdict. We must employ a broad, comprehensive review of the



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       record in order to determine whether the trial court’s decision is
       supported by competent evidence.

In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, the

burden is upon the petitioner to prove by clear and convincing evidence2

that the asserted grounds for seeking the termination of parental rights are

valid. Id., at 806.

       “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. and J.G., Minors, 855 A.2d

68, 73-74 (Pa. Super. 2004).            “If 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., Jr., 835 A.2d 387, 394 (Pa.

Super. 2003).

       While Father’s appeal raises issues pertaining to all of the grounds for

termination, this Court may affirm the trial court’s decision with regard to

any one subsection of section 2511(a). See In re B.L.W., 843 A.2d 380,

384 (Pa. Super. 2014) (en banc). As such we will focus on 2511(a)(1) and

2511(b), which provide as follows:

       § 2511. Grounds for involuntary termination
____________________________________________


2
  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.” In re J.L.C. and J.R.C., 837 A.2d 1247, 1251 (Pa. Super.
2003).



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     (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
                 filling 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(a)(1), (b).

     This Court has explained the review of a challenge to the sufficiency of

the evidence supporting the involuntary termination of a parent’s rights

pursuant to Section 2511(a)(1) as follows:

     To satisfy the requirements of section 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.




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                                    ***

     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) (citations omitted).

     [T]o be legally significant, the [post-abandonment] contact must
     be steady and consistent over a period of time, contribute to the
     psychological health of the child, and must demonstrate a
     serious intent on the part of the parent to recultivate a parent-
     child relationship and must also demonstrate a willingness and
     capacity to undertake the parental role. The parent wishing to
     reestablish his parental responsibilities bears the burden of proof
     on this question.

In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citation omitted); see

also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super. 2008) (en

banc).

     This Court has emphasized that a parent does not perform his or her

parental duties by displaying a “merely passive interest in the development

of the child.” In re B.N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal

citations omitted). We have explained:

     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 court
     has held that the parental obligation is a positive duty which
     require affirmative performance.

     This affirmative duty encompasses more than a financial
     obligation; it requires continuing interest in the child and a

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      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.

      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 or her
      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…her physical and emotional needs.

Id.

      Further, we have stated that a parent is required to make diligent

efforts   towards    the   reasonably   prompt    assumption   of   full   parental

responsibilities    In re A.L.D., 797 A.2d 326, 327 (Pa. Super. 2002).           A

parent’s vow to cooperate after a long period of uncooperativeness regarding

the necessity or availability of services, may properly be rejected as

untimely or disingenuous. Id. at 340.

      By Father’s own admission, he has made no efforts toward assuming

responsibility for his children. Father admitted that he “can’t really do much

for his kids at the moment.” Notes of Testimony (N.T.), 12/11/15, at 75.

Father did not utilize any of the resource offered by DHS. He is homeless

and indicated to the court that in three to six months he would have a plan

to provide for his children.    N.T. at 82.      Father’s vow to cooperate after

eighteen months is disingenuous. Father has not demonstrated a desire to


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parent or maintain a relationship with his children.    He attended only one

supervised visit the entire time the children were in care. N.T. at 65.

      In reaching its decision, the trial court noted that, in the six-month

period preceding the petition for involuntary termination, Father did not

complete any of his objectives and, throughout the life of the case, Father

has never been compliant with court orders. Trial Court Opinion at 8. The

trial court found that “Father, by his conduct, had refused and failed to

perform parental duties, so termination under this section was proper.” Id.

      Accordingly, our review of the record supports the trial court’s

conclusion that termination of Father’s parental rights was proper under

Section 2511(a)(1).   As noted above, this Court need only agree with the

trial court’s decision to terminate parental rights under one subsection of

Section 2511. See In re B.L.W., supra.

      After we determine that the requirements of Section 2511(a) are

satisfied, we proceed to review whether the requirements of Section 2511(b)

are satisfied.   See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.

Super. 2008) (en banc).       Pursuant to Section 2511(b), the court, in

terminating the rights of a parent, shall give primary consideration to the

developmental, physical, and emotional needs and welfare of a child.

      Kristen Jenkins, Children’s Choice social worker, testified that Father

only visited the children once during the entire eighteen months they were in

care. N.T. at 65. Since the visit in March 2015, Father never contacted Ms.



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Jenkins for additional visits. Id. at 66. Based on the lack of visitation, Ms.

Jenkins reasoned that the children did not maintain an attachment to Father,

thus they would suffer no irreparable harm if Father’s rights were

terminated. Id. at 67. Furthermore, Ms. Jenkins testified that the children

look to foster mother to meet all of their needs.     Id. at 68. The children

view Foster Mother as the parental figure in their lives. Id.

      As there is competent evidence in the record that supports the trial

court’s credibility and weight assessments that severing the bond with

Father would not cause the children irreparable harm, we conclude that the

trial court did not abuse its discretion in terminating Father’s parental rights

to the Children with regard to section 2511(b).

      Finally, Father argues that the trial court committed errors depriving

him of his Due Process and Equal Protection rights.       Father’s reliance on

Stanley v. State of Illinois, 92 S. Ct. 1208 (1972) is misplaced. In that

case, the Supreme Court held that a parent was entitled to a hearing on his

fitness as a parent before his children were taken away and, thus, the State

had violated his equal protection of the laws guaranteed by the Fourteenth

Amendment. Id. at 1212.

      In the instant case, Appellant had a hearing on the termination of

parental rights petition.   At which, evidence was presented regarding his

fitness as a parent.    Trial counsel had the opportunity to cross-examine

witnesses and present witnesses if they wished.        Furthermore, Appellant


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testified at trial and had the opportunity to refute testimony. Father’s fourth

issue is without merit, the trial court did not violate Father’s due process

rights. Accordingly, after a careful review, we affirm the order terminating

Father’s parental rights on the basis of 2511(a)(1) and (b).


      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2017




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