J-S74016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.J.P., A MINOR               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: D.B., FATHER

                                                       No. 964 EDA 2016


                  Appeal from the Order Entered March 3, 2016
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-DP-0001876-2014
                            CP-51-AP-0000145-2016


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                            FILED DECEMBER 22, 2016

        D.B. (“Father”) appeals from the March 3, 2016 decree involuntarily

terminating his parental rights to his son, A.J.P., born in May of 2006.1 We

affirm.2


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  By separate decree entered on March 3, 2016, the trial court involuntarily
terminated the parental rights of A.P. (“Mother”). Mother filed an appeal
from the decree, which is docketed at 1089 EDA 2016. This Court disposed
of Mother’s appeal by separate memorandum.
2
  The trial court also issued a goal change order dated March 3, 2016, and
Father timely filed a notice of appeal. We conclude that Father’s appeal from
the goal change order is waived because he has not raised any claim
regarding it in his brief. See Krebs v. United Refining Co. of Pa., 893
A.2d 776, 797 (Pa. Super. 2006) (“We will not ordinarily consider any issue
(Footnote Continued Next Page)
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      We summarize the factual and procedural history as follows.          On

August 6, 2014, A.J.P. was removed from Mother’s custody and placed with

his maternal aunt as a result of allegations against Mother of child abuse and

illegal marijuana use. Trial Court Opinion, 6/8/16, at 2-3. The trial court

adjudicated A.J.P. dependent on August 20, 2014. Id. at 3.

      Father has been incarcerated throughout the history of this case. On

September 30, 2015, he entered a guilty plea on charges of murder in the

third degree and aggravated assault. Id. at 7. Father was sentenced to a

term of incarceration of 22 ½ to 45 years imprisonment. Id. By the time of

the subject proceedings, Father was incarcerated at the State Correctional

Institution - Smithfield, where he was housed in a restricted unit and not

permitted any contact with visitors. Id. at 8.

      During A.J.P.’s dependency, Father was assigned a single case plan

requiring him to remain in communication with the child. N.T., 3/3/16, at

22. On February 16, 2016, the Philadelphia County Department of Human

Services (“DHS”) filed a petition for the involuntary termination of Father’s

parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b).       On

March 3, 2016, the trial court held a hearing during which DHS presented

the testimony of Yoanny Santos and Deitra Price, case managers at the

                       _______________________
(Footnote Continued)

if it has not been set forth in or suggested by an appellate brief’s statement
of questions involved. . . .”) (citations omitted).




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Community Umbrella Association (“CUA”) - Northeast Treatment Center

(“NET”). In addition, Father testified on his own behalf.

      By decree dated and entered on March 3, 2016, the trial court

involuntarily terminated Father’s parental rights. Father timely filed a notice

of appeal and a concise statement of errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b).

      On appeal, Father presents three issues for our review:

      1. Whether the [t]rial [c]ourt erred by terminating the parental
      rights of [Father] under 23 Pa.C.S.A. § 2511(a)(1)?

      2. Whether the [t]rial [c]ourt erred by terminating the parental
      rights of [Father] under 23 Pa.C.S.A. § 2511(a)(2)?

      3. Whether the [t]rial [c]ourt erred by terminating the parental
      rights of [Father] under 23 Pa.C.S.A. § 2511(b)?

Father’s brief at 5.

      Our standard of review is as follows:

      The standard of review in termination of parental rights cases
      requires appellate courts to accept the findings of fact and
      credibility determinations of the trial court if they are supported
      by the record. If the factual findings are supported, appellate
      courts review to determine if the trial court made an error of law
      or abused its discretion. A decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely
      because the record would support a different result. We have
      previously emphasized our deference to trial courts that often
      have first-hand observations of the parties spanning multiple
      hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

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      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated

analysis.

      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.

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

      We need only agree with the trial court as to any one subsection of

Section 2511(a), as well as Section 2511(b), in order to affirm. See In re

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we

conclude that the certified record supports the decree pursuant to Section

2511(a)(2) and (b), which provide 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:

                                    ...

            (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


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           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 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(a)(2), (b).

     With respect to Section 2511(a)(2), this Court has stated:

     [T]he following three elements must be met (1) repeated and
     continued incapacity, abuse, neglect or refusal; (2) such
     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 (3) the causes of the
     incapacity, abuse, neglect or refusal cannot or will not be
     remedied.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted). Further, we have explained that, “[t]he grounds for termination

due to parental incapacity that cannot be remedied are not 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, 337 (Pa. Super. 2002) (citations omitted).

     With respect    to   Section 2511(b),    this   Court has    stated    that,

“[i]ntangibles such as love, comfort, security, and stability are involved in

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the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d

1284, 1287 (Pa. Super. 2005) (citation omitted).      Further, the trial court

“must also discern the nature and status of the parent-child bond, with

utmost attention to the effect on the child of permanently severing that

bond.”   Id. (citation omitted).   However, “[i]n 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., 946

A.2d 753, 762-763 (Pa. Super. 2008) (citation omitted).

      Instantly, Father acknowledges, “he will be in prison during the child’s

minor years.” Father’s brief at 17. Nevertheless, he relies on this Court’s

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

(en banc), wherein we affirmed the order terminating the incarcerated

father’s parental rights under Section 2511(a)(1).        Specifically, Father

argues that the trial court erred in terminating his parental rights pursuant

to Section 2511(a)(2) because “[i]ncarceration alone is not sufficient to

support termination under any subsection.” Father’s brief at 17. Although

Father acknowledges that, “an incarcerated parent’s responsibilities are not

tolled during incarceration,” he asserts that he never received the single

case plan established by DHS in this matter. Id. As such, Father argues he

“could not begin the process of availing himself [of] services in prison and

perform[ing] his parental duties.” Id. Father’s issue is without merit.


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      In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme

Court held that this Court erred in reversing the trial court’s order

involuntarily terminating the incarcerated father’s parental rights pursuant to

Section 2511(a)(2).    Specifically, our Supreme Court explained that we

misinterpreted In re Adoption of McCray, 331 A.2d 652 (Pa. 1975), which

considered the termination of parental rights of incarcerated parents

involving abandonment, now codified at Section 2511(a)(1), as providing

that incarceration alone cannot be grounds for termination under any

provision of Section 2511(a). S.P., 47 A.3d at 828. Further, the S.P. Court

stated that we misapplied McCray by “conflating the statutory criteria for

termination in a § 2511(a)(1) abandonment case with the standard

applicable in a § 2511(a)(2) incapacity case.” Id. at 828. Importantly, the

S.P. Court stated:

      [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).

Id. at 830.

      Based on the holding in In re Adoption of S.P., supra, we conclude

that In the Interest of C.S., supra, which Father relies on, is inapposite in

this matter. In In the Interest of C.S., we considered incarceration under


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Section 2511(a)(1).         We will not “conflate” the statutory criteria for

termination in this case, which we have reviewed under the standard

applicable in a Section 2511(a)(2) incapacity case.3

       We discern no abuse of discretion by the trial court in terminating

Father’s parental rights pursuant to Section 2511(a)(2) due to his “ongoing

inability to provide care or control for the [c]hild or perform any parental

duties because he is incarcerated, sentenced to 22.5 to 45 years in prison.”

Trial Court Opinion, 6/8/16, at 15. As such, Father’s argument with respect

to Section 2511(a)(2) fails.

       In addition, we reject Father’s bald assertion that DHS did not provide

clear and convincing evidence regarding Section 2511(b).       This Court has

explained as follows:

       While a parent’s emotional bond with his or her 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 K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). 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 parents’
       parental rights was affirmed where court balanced strong
       emotional bond against parents’ inability to serve needs of
       child). Rather, the orphans’ court must examine the status of
       the bond to determine whether its termination “would destroy an
       existing, necessary and beneficial relationship.” In re Adoption
       of T.B.B., 835 A.2d 387, 397 (Pa. Super. 2003).           As we
       explained in In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010),
____________________________________________


3
 Based on this disposition, we need not review Father’s issue with respect to
Section 2511(a)(1).



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         [I]n addition to a bond examination, the trial court can
         equally emphasize the safety needs of the child, and
         should also consider the intangibles, such as the love,
         comfort, security, and stability the child might have with
         the foster parent. Additionally, this Court stated that the
         trial court should consider the importance of continuity of
         relationships and whether any existing parent-child bond
         can be severed without detrimental effects on the child.

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).

      Instantly, Yoanny Santos, the CUA case manager, testified that

although A.J.P. has a relationship with Father, it is not a strong relationship.

N.T., 3/3/16, at 24.     She testified that A.J.P. has never lived with Father,

and that “they’ve had very little communication. . . .”       Id.   Ms. Santos

testified that A.J.P. would not be irreparably harmed if Father’s parental

rights are terminated. Id. Because there is no record evidence of a parent-

child bond between A.J.P. and Father, it was reasonable for the court to infer

that no such bond exists. See In re K.Z.S., supra. Therefore, we discern

no abuse of discretion by the trial court in terminating Father’s rights

pursuant to Section 2511(b). Accordingly, we affirm the decree pursuant to

Section 2511(a)(2) and (b).

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2016




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