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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: E.R.A.G., A                   IN THE SUPERIOR COURT OF
MINOR,                                                  PENNSYLVANIA




APPEAL OF: E.G.,

                                                       No. 3469 EDA 2014


                    Appeal from the Decree October 29, 2014
              In the Court of Common Pleas of Philadelphia County
                 Family Court at No(s): CP-51-AP-0000482-2013
                            CP-51-DP-0001614-2011


BEFORE: BOWES, OTT AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                                 FILED JULY 29, 2015

       E.G. (“Father”) appeals from the order entered on October 29, 2014,

wherein the trial court involuntarily terminated his parental rights to his

eight-year-old daughter, E.R.A.G.1 We affirm.

       The following facts were gleaned from the certified record.      E.R.A.G.

was born during January 2006. Father has been incarcerated since February

17, 2011, and he was not involved in her care prior to placement.            On

August 10, 2011, the Philadelphia Department of Human Services (“DHS”)

received a General Protective Services (“GPS”) report alleging that then-five-

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1
    E.R.A.G.’s mother, C.S., voluntarily relinquished her parental rights.
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year-old E.R.A.G. and her half-sibling were playing outside of the home

unsupervised.    The GPS report also alleged, inter alia, that E.R.A.G. was

dirty, slept outside while C.S. (“Mother”) was away from the home, that the

household lacked food, and that drug trafficking was occurring at the

residence.    The report was ultimately substantiated.     The ensuing DHS

investigation revealed that the home was infested with vermin. Food was

stored in a hole in the bedroom wall, and E.R.A.G. and her half-sibling slept

on a urine-soaked mattress on the floor. On August 11, 2011, DHS removed

E.R.A.G. from the home under the authority of an order of protective

custody.

      On September 1, 2011, the juvenile court adjudicated E.R.A.G.

dependent pursuant to the Juvenile Act, 42 Pa.C.S. § 6302, and committed

the child to DHS physical and temporary legal custody. The court directed

DHS to arrange a visitation schedule for Father at SCI-Coal Township and to

invite him to participate in the ensuing Family Service Plan (“FSP”) meeting

by telephone.     Father remained incarcerated throughout his daughter’s

placement and was not released from confinement until after he filed the

instant appeal from the order terminating his parental rights.

      The original goal of the FSP was reunification.    Father’s goals under

the plan required him to submit to evaluations addressing potential drug and

alcohol abuse and his mental health, complete a parenting education course,

comply with consistent visitation with E.R.A.G., participate in his daughter’s

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permanency planning, and maintain contact with DHS.                 The goals were

subsequently revised to include virtual visitation with E.R.A.G. at SCI-Coal

Township, sending the child correspondence, and locating suitable housing

for his impending release from prison.

       Father’s compliance was minimal. He initially mailed E.R.A.G. letters

and photographs, and he requested virtual visitation with her. However, the

correspondence        was    sporadic,     and   Father     never   completed   the

arrangements for the virtual visitations. In fact, due to his inaction for more

than six months, prison administrators revoked his authorization to

participate in the virtual visitation program.            DHS offered to have his

authorization reinstated, but Father declined.            Allegedly due to what he

believed would be his impending release, Father did not want to participate

in that program.        Unfortunately for Father, he was not released from

incarceration until more than one year after the virtual visitations with

E.R.A.G. would have commenced.

       On October 28, 2013, DHS filed a petition to terminate Father’s

parental rights pursuant to 23 Pa.C.S. § 2511(a).            Following a hearing on

October 29, 2014,2 the trial court terminated Father’s parental rights to

____________________________________________


2
  Despite being served notice of the proceedings, Father did not participate
in the evidentiary hearing. Appointed counsel was unable to reach Father at
SCI Coal Township. Marleah Harper, a DHS social worker, was the only
witness to testify during the hearing. In order to conserve time, Father’s
(Footnote Continued Next Page)


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E.R.A.G. pursuant to 23 Pa.C.S. § 2511(a)(1), (2) and (b). 3        This timely

appeal ensued.         Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a

concise statement of errors complained of on appeal simultaneously with his

notice of appeal.

      Father presents two issues for our review:

      1.    Whether the trial court found by clear and convincing
      evidence that [DHS] met its burden of proof that Father’s
      parental rights should be terminated?

      2.    Whether the trial court found by clear and convincing
      evidence that terminating Father’s parental rights was in
      [E.R.A.G.’s] best interest[?]

Father’s brief at 4.

      We review the trial court’s order to grant or deny a petition to

involuntarily terminate parental rights for an abuse of discretion.      In re

C.W.U., Jr., 33 A.3d 1, 4 (Pa.Super. 2011). “We are limited to determining

whether the decision of the trial court is supported by competent evidence.”

                       _______________________
(Footnote Continued)

counsel stipulated that, if called by DHS, the caseworker assigned to the
family would testify consistent with the statement of facts attached to the
agency’s petition to terminate Father’s parental rights.
3
  The trial court initially terminated Father’s parental rights based upon
subsections (a)(1), (2), (5), and (8). However, it subsequently concluded
that reliance upon subsections (5) and (8) would be inappropriate due to the
fact that Father was incarcerated when E.R.A.G. was initially placed in DHS
custody. We do not comment on the merits of the court’s legal perspective
beyond the observation that E.R.A.G. was placed in DHS care due to a lack
of parental care and control, which was due, at least partially, to Father’s
continued incarceration.



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In re R.L.T.M., 860 A.2d 190, 191 (Pa.Super. 2004) (quoting In re C.S.,

761 A.2d 1197, 1199 (Pa.Super. 2000)).        However, “[w]e 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

C.W.U., Jr., supra at 4.     As the ultimate trier of fact, the trial court is

empowered to make all determinations of credibility, resolve conflicts in the

evidence, and believe all, part, or none of the evidence presented.       In re

A.S., 11 A.3d 473, 477 (Pa.Super. 2010). “If competent evidence supports

the trial court's findings, we will affirm even if the record could also support

the opposite result.” Id.

      The party petitioning for termination of parental rights “must prove the

statutory criteria for that termination by at least clear and convincing

evidence.” In re T.R., 465 A.2d 642, 644 (Pa. 1983). 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 hesitancy, of the truth of the precise facts in issue.”      Matter of

Sylvester, 555 A.2d 1202, 1203–04 (Pa. 1989).

      Requests to involuntarily terminate a biological parent’s parental rights

are governed by 23 Pa.C.S. § 2511, which provides in pertinent part as

follows:

      (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:

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        (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. § 2511.

     The test for terminating parental rights consists of two parts. In In re

L.M., 923 A.2d 505, 511 (Pa.Super. 2007), we explained:

     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 or her 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. One major aspect of the
     needs and welfare analysis concerns the nature and status of the
     emotional bond between parent and child, with close attention
     paid to the effect on the child of permanently severing any such
     bond.




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      Herein, the certified record supports the trial court’s determination

that DHS established the statutory grounds to terminate Father’s parental

rights pursuant to 23 Pa.C.S. § 2511(a)(1) and (b).          As it relates to

§2511(a)(1), the pertinent inquiry for our review follows:

      To satisfy 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. . . .
      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.

In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (quoting Matter of

Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)) (internal

citations omitted). Although the six months immediately preceding the filing

of the petition are the most critical to the analysis, the trial court must

consider the whole history of a given case and not mechanically apply the

six-month statutory provision.    In re B.,N.M., 856 A.2d 847 (Pa.Super.

2004). Additionally, to the extent that the trial court based its decision to

terminate parental rights pursuant to subsection (a)(1), “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.” In In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003),



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we explained, “A parent is required to exert a sincere and genuine effort to

maintain a parent-child relationship; the parent must use 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.”

      Instantly, Father argues that he used all resources available to him to

maintain contact with E.R.A.G. while he was incarcerated.                 He begins by

identifying   the    FSP   goals     that   he    claimed   were    unattainable   while

incarcerated at SCI Coal Township, i.e., completing parenting classes,

submitting to mental health evaluations, and finding and maintaining

suitable housing. Father’s brief at 5-6. Next, he asserts that he attempted

to comply with the remaining goal of maintaining contact with his daughter.

Id. at 6. Father stresses that he mailed DHS letters and cards to deliver to

E.R.A.G. and that he attempted to participate in virtual visitation with his

daughter during his incarceration.          Id. Additionally, Father asserts that he

contacted DHS and requested the agency’s assistance in establishing in-

person visitation with his daughter. Id.

      The certified record belies Father’s assertion that he made a sincere

and genuine effort to perform parental duties or preserve his parental

relationship with E.R.A.G. The stipulated facts and the testimony presented

by Ms. Harper during the hearing demonstrate Father’s patent inaction. The

extent of Father’s communication with E.R.A.G. during his confinement

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amounts to sporadic letters that he mailed to her immediately after

placement and the correspondence he mailed to DHS wherein he inquired

about his daughter’s wellbeing.      These meager efforts do not evince the

commitment to his daughter that our High Court referenced in In re

Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012), when it explained that,

“pursuant to an abandonment analysis [an incarcerated parent has] a duty

to utilize available resources to continue a relationship with his or her child.”

      To the contrary, Father failed to complete his FSP objectives or

participate in any visitation with his daughter during the course of her

placement. N.T., 10/29/14, at 11. Father ignored the trial court’s directive

to participate in virtual visitation with E.R.A.G. Id. at 11. Due to Father’s

failure to act, the prison withdrew Father from the virtual visitation program.

DHS Exhibit A, at ¶ xx.     When DHS offered to revive the virtual visitation

process on his behalf, Father directed the agency to suspend their efforts

due to his misguided belief that his release was pending. Id. at ¶ zz; N.T.,

10/29/14 at 21. Thus, Father never visited his daughter, either personally

or virtually, during the three years that she was in placement.

      In addition, Father failed to exercise reasonable firmness in declining

to yield to the obstacles created by his imprisonment.             He failed to

participate in any prison programs addressing his substance abuse,

parenting, or mental health.        N.T., 10/29/14, at 11.        While Father’s

argument focuses on his bare claim that SCI-Coal Township did not offer the

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required services, he neglected to document that assertion or identify what,

if any, programs he could have utilized.         See Father’s brief at 5-6.

Accordingly, we reject Father’s insinuation that SCI-Coal Township did not

offer any programs that would inure to his benefit.        Indeed, in light of

Father’s demonstrated inertia generally and his disinterest in the virtual

visitation program, the record supports the inference that Father’s empty

reliance upon the supposed lack of prison services is disingenuous.      It is

clear that Father not only failed to foster or continue a close relationship

with his daughter, but he also flouted the prison resources that would have

helped him preserve whatever parental relationship that he had formed with

E.R.A.G. prior to his incarceration. Indeed, by the evidentiary hearing,

Father had ceased all contact with E.R.A.G., DHS, and his own attorney.

N.T., 10/29/14, at 4. Hence, the record sustains the trial court’s conclusion

that DHS proved by clear and convincing evidence the statutory grounds to

terminate Father’s parental rights pursuant to § 2511(a)(1). Father simply

failed to exercise reasonable firmness in attempting to establish a parental

relationship with E.R.A.G. or in performing his parental rights.

      Having concluded that the trial court did not err in finding that CYS

satisfied its burden pursuant to 23 Pa.C.S. § 2511(a)(1), we next review the

trial court’s needs and welfare analysis under § 2511(b). While the Adoption

Act does not mandate that the trial court consider the effect of permanently




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severing parental bonds, our case law requires it where a bond exists to

some extent. See In re E.M., 620 A.2d 481, 485 (Pa. 1993).

      The extent of the trial court’s bond-effect analysis depends upon the

circumstances of a particular case.       In re K.Z.S., 946 A.2d 753, 763

(Pa.Super. 2008).     We have emphasized that while a parent’s emotional

bond with his child is a major aspect of the § 2511(b) best-interest analysis,

it is nonetheless only one of many factors to be considered by the trial court

when determining what is in the best interest of the child. In re K.K.R.-S.,

958 A.2d 529, 535-536 (Pa.Super. 2008). Indeed, the mere existence of an

emotional bond does not preclude the termination of parental rights. See In

re T.D., 949 A.2d 910 (Pa.Super. 2008) (trial court’s decision to terminate

parental rights was affirmed where court balanced strong emotional bond

against parents’ inability to serve needs of child).

      As we explained in In re K.Z.S., supra at 763 (emphasis omitted),

            In addition to a bond examination, the court may equally
      emphasize the safety needs of the child under subsection (b),
      particularly in cases involving physical or sexual abuse, severe
      child neglect or abandonment, or children with special needs.
      The trial court should also examine the intangibles such as the
      love, comfort, security and stability the child might have with the
      foster parent.     Another consideration is the importance of
      continuity of relationships to the child and whether the parent
      child bond, if it exists, can be severed without detrimental
      effects on the child. All of these factors can contribute to the
      inquiry about the needs and welfare of the child.

See also In re A.S., supra at 483 (orphans’ court can emphasize safety

needs, consider intangibles, such as love, comfort, security, and stability

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child might have with the foster parent, and importance of continuity of

existing relationships).

      Herein, the trial court concluded that terminating Father’s parental

rights would not destroy an existing necessary relationship and that freeing

E.R.A.G. for adoption would best serve her developmental, physical and

emotional needs and welfare.       As the certified record supports the trial

court’s determination, we will not disturb it.

      DHS established by clear and convincing evidence that a meaningful

bond does not exist between Father and E.R.A.G. Father has not interacted

with E.R.A.G. on the telephone or had any form of physical contact with his

daughter since before her August 2011 placement. N.T., 10/29/14, at 11.

The only communication that Father had with his daughter since she was

five years old was the sporadic correspondence that he mailed her for a brief

period immediately after her placement.          Even prior to Father’s February

2011 incarceration, Father did not live with E.R.A.G. or provide her any

parental care. DHS Exhibit A at ¶ r. Moreover, Father purposely flouted the

trial court’s directive to participate in virtual visitation with his daughter

while he was incarcerated. He allowed himself to be discharged from that

program due to his inaction, and he advised DHS that he did not desire its

assistance in getting his authorization reinstated.

      In contrast, Ms. Harper testified that E.R.A.G. is thriving in her pre-

adoptive foster home. N.T., 10/29/14, at 12. She shares a close bond with

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her foster parents, and the family satisfies her basic needs. Id. E.R.A.G.’s

immunizations are current, and she is developmentally on target.          Id.   In

sum, Ms. Harper opined that E.R.A.G. would not suffer irreparable harm if

Father’s parental rights were terminated and she believed that terminating

Father’s rights was in the child’s best interest. Id. at 13. Thus, for all of the

foregoing reasons, we find that the certified record sustains the trial court’s

conclusion that “[t]erminating Father’s parental rights would not destroy an

existing necessary relationship between Father and [E.R.A.G.] . . . [and

that] . . . [i]t is in the best interest of [E.R.A.G.] to be adopted.” Trial Court

Opinion, 2/10/15, at 8.

      Father argues that severing his bond with E.R.A.G. would have a

severe impact on the child. Again, we disagree. Notwithstanding Father’s

assertions, his perspective of the potential decision to relinquish his parental

rights to E.R.A.G. reveals the true nature of the fragile parent-child

relationship in this case.    We do not criticize Father for considering the

option of voluntarily relinquishing his parental rights.     In fact, a parent’s

ability to recognize the often-difficult reality that he or she is incapable of

providing his or her child the necessary parental care and control is

commendable. We observe, however, that Father conditioned his voluntary

relinquishment of parental rights upon then-eight-year-old E.R.A.G. first

advising him that she preferred her foster parent over him. See Id. at 15.

As Ms. Harper explained, “he will not sign voluntaries unless he hears from

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[E.R.A.G. whether] she wants him to or not[, i.e.,] does she choose him or

[the foster mother].” Id.   Father’s predicate condition that E.R.A.G. reject

him to his face exposes the frayed connection that he has with his daughter

and defeats any assertion that a healthy, beneficial parent-child relationship

exists.   As the trial court accurately observed, “Father wants to place the

burden on [E.R.A.G.] to choose between him and the foster parent, which is

inappropriate and unreasonable to place on a [c]hild.” Trial Court Opinion,

at 7. We agree.

       Accordingly, in light of the evidence demonstrating the absence of a

healthy parent-child bond between E.R.A.G. and Father, the favorable

relationship that E.R.A.G. shares with her pre-adoptive foster family, and the

importance of continuing that beneficial relationship, our review of the

certified record supports the trial court’s determination that terminating

Father’s parental rights best satisfied E.R.A.G.’s developmental, physical,

and emotional needs and welfare.

       For all of the foregoing reasons, we affirm the trial court order

terminating Father’s parental rights to E.R.A.G. pursuant to § 2511(a) and

(b).

       Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2015




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