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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN RE: S.R., A MINOR,                     :   IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                                          :
                                          :
APPEAL OF: W.C., FATHER                   :   No. 2147 MDA 2015

              Appeal from the Order Entered November 13, 2015
              in the Court of Common Pleas of Lancaster County
                     Orphans’ Court at No(s): 2015-0722

BEFORE:     SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                       FILED MAY 24, 2016

      W.C. (Father) appeals from the decree that terminated his parental

rights to his biological daughter, S.R.1 We affirm.

      The orphans’ court aptly set forth the factual and procedural history of

this matter as follows.

            S.R. was born [in November of 2013]. At the time of her
      birth, [Mother] was incarcerated. Mother named [E.T.] as the
      father of S.R. and [CYS] attempted to locate him. [A] shelter
      care hearing was held on November 26, 2013, at which time
      temporary and legal custody was granted to [CYS]. [An]
      adjudication and disposition hearing was held on January 7,
      2014. [A] review hearing was held on April 25, 2014. [CYS] was
      unable to establish [E.T.’s] whereabouts during this period of
      time. [S.R. was placed in the care of her foster parents, where
      she has remained.]

           On July 17, 2014, Mother reported she saw S.R.’s father in
      Lancaster and he gave her his number and address. Mother then
      gave [CYS] his contact information, explaining that his correct
      name was [W.C.] and that [E.T.] was the false name he had



1
  Mother consented to the termination of her parental rights and a decree to
that effect was entered on July 28, 2015.

*Retired Senior Judge assigned to the Superior Court.
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     given Mother. [Father denies having used E.T. as an alias,
     stating this is what caused him to question paternity.]

            [CYS] then modified [its] search for Father. Father did not
     have a prior history with [CYS] but did have a criminal history,
     which included robbery in 1998, burglary armed or causing
     injury in 1998, manufacturing/delivering drugs in 2009, retail
     theft in 2012 and 2013, public drunkenness in 2013, and false
     identification to [l]aw [e]nforcement in 2013. [CYS] was unable
     to contact Father using the information he had provided Mother.
     His whereabouts remained unknown until August 15, 2014, when
     he was located at the Lancaster County Prison (LCP).

            [A CYS] caseworker met with Father at LCP on August 22,
     2014. Father reported that he met Mother in April or May of
     2014 and provided his information to her. Mother provided that
     information to [CYS] in July 2014. Father testified that he had
     doubts about paternity. He stated he wanted to be involved with
     [S.R.], if he [was] in fact her father. However, he had done
     nothing to establish the validity of Mother’s claim after being
     given notice [of S.R.’s existence]. Father did not deny the
     possibility that he was S.R.’s father. In fact, the caseworker
     testified that he appeared interested in the fact that S.R. might
     be his daughter. On August 29, 2014, the [CYS] caseworker
     again met with Father while he was in prison, informing him of a
     paternity test scheduled September 16, 2014.

          At the ten month review hearing on September 2, 2014,
     Father was present for the first time. The [c]ourt reminded
     Father to stay in contact with [CYS] after his release from prison
     and to participate in [CYS’s] assessments. He was cooperative
     and submitted to the paternity testing while incarcerated.
     However, after his release later in September, [CYS] was once
     again unable to contact Father. Father never attempted to
     contact [CYS] after his release.

           On October 2, 2014, the paternity results established
     [Father] as the biological father of S.R. That same day, the
     caseworker went unannounced to Father’s home. When no one
     answered, she left her card with instructions to contact [CYS].
     The caseworker also sent a letter informing Father of the
     paternity results. Father testified he never received the card, but
     did agree that he received the letter confirming his paternity.


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     The caseworker again conducted an unannounced home visit on
     October 15, 2014, but was unable to make contact with Father.
     It is uncontested that [CYS] had no contact with Father during
     this period of time, despite his paternity being confirmed and
     [CYS’s] attempts to contact him. Neither Mother nor Father
     [was] present for the eleven month review hearing held on
     October 22, 2014.

            Father contacted [CYS] in November 2014, nearly eight
     months after Father had been apprised [of] S.R.’s existence. He
     was once again in the LCP, having violated his probation. He
     testified that he did not contact the caseworker during the nearly
     two months after he was released from prison because he was
     shocked and distraught that he had a daughter and that she was
     in placement. Father stated that he would be incarcerated for
     one year and was unable to care for S.R. He did provide names
     of possible kinship resources.

            Father was given a child permanency plan [(CPP)] for
     reunification with the following objectives: mental health, drug
     and alcohol, crime free, parenting skills, financial stability, obtain
     housing, and commitment.          [CYS] encouraged Father to
     participate any mental health and drug and alcohol programs
     available while incarcerated. The fifteen month review hearing
     was held on February 4, 2015. Father, who remained
     incarcerated, was present. Father did send letters to [CYS] for
     S.R., but no progress was reported on his CPP.

           On March 12, 2015, [CYS] denied kinship care placement,
     having determined it was in S.R.’s best interest to remain in her
     current resource home where she had been placed since birth,
     and not be moved to either her paternal grandparents’ home or
     Father’s wife’s home. Her resource parents were a possible
     adoptive resource. [On March 26, 2015, CYS filed a petition
     seeking to terminate involuntarily Father’s parental rights to S.R.
     and confirm Mother’s consent to adoption by S.R.’s foster
     parents.]

           The [termination of parental rights (TPR)] hearing and 19
     month review hearing were held on June 2 [and July 28,] 2015.
     At that time, Father was incarcerated at SCI Camp Hill and
     reported an anticipated release date of November 2015. Father
     reported he participated in the drug and alcohol program and


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      parenting program at LCP. Father continued to send letters to
      [CYS] for S.R. All of Father’s [CPP] goals remained incomplete.

Orphans’ Court Opinion, 11/13/2015, at 3-6 (citations and unnecessary

capitalization omitted).

      On November 13, 2015, the orphans’ court issued its decree

terminating Father’s parental rights to S.R. Father timely filed a notice of

appeal, along with a concise statement of errors complained of on appeal.

The orphans’ court filed an opinion.

      Father presents this Court with a single question:

      Where Father was incarcerated prior to learning that he was the
      parent of a dependent child; where he, while incarcerated
      initiated frequent contact with [CYS] and sought opportunities to
      be involved with his child; where he availed himself of remedial
      programs while in prison; and where his maximum release date
      is not distant, was it an abuse of discretion to grant [CYS’s]
      petition to terminate?

Father’s Brief at 5 (suggested answer omitted).

      We consider Father’s question mindful of the following.

             In cases involving the termination of a parent’s 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.

             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.




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In re C.W.U., Jr., 33 A.3d 1, 4 (Pa. Super. 2011) (internal quotations and

citations omitted).

      Here, the orphans’ court determined that CYF met its burdens under

subsections (a)(1) and (a)(2) of 23 Pa.C.S. § 2511, as well as its subsection

(b) burden. Because we agree with the orphans’ court’s determination that

CYS met its burden under subsection (a)(2), we need not consider Father’s

other arguments. In re I.E.P., 87 A.3d 340, 344 (Pa. Super. 2014) (“This

Court must agree with only one subsection of [] 2511(a), in addition to

subsection 2511(b), in order to affirm the termination of parental rights.”).

      The governing statute provides 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
            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.



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23 Pa.C.S. § 2511.

     We first address whether the orphans’ court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(a)(2).

     In order to terminate parental rights pursuant to 23 Pa.C.S.[]
     § 2511(a)(2), the 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).

     [S]ubsection (a)(2) does not emphasize a parent’s refusal or
     failure to perform parental duties, but instead emphasizes the
     child’s present and future need for essential parental care,
     control or subsistence necessary for his physical or mental well-
     being. Therefore, the language in subsection (a)(2) should not
     be read to compel courts to ignore a child’s need for a stable
     home and strong, continuous parental ties, which the policy of
     restraint in state intervention is intended to protect. This is
     particularly so where disruption of the family has already
     occurred and there is no reasonable prospect for reuniting it[.]
     Further, grounds for termination under subsection (a)(2) are not
     limited to affirmative misconduct; those grounds may include
     acts of incapacity to perform parental duties.

In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008) (citations and quotation

marks omitted; emphasis in original).

     Instantly, the orphans’ court concluded that Father has demonstrated

a continued inability to parent S.R., and has demonstrated that he is

incapable of remedying this incapacity. Orphans’ Court Opinion, 11/13/2015,

at 10-13. In so holding, the court emphasized Father’s present incarceration

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and his continued involvement in criminal activity despite confirmation of

S.R.’s paternity. Id.

      Father contends that, although he has never met S.R. in person, he

has communicated with his CYS caseworker to inquire about her well-being.

Father’s Brief at 10-11. Further, while incarcerated, Father has completed a

number of programs required by CYS. Id. at 14. Finally, Father argues that

he is “not facing a prolonged period of waiting before he could be in a

position to parent” S.R. because his “maximum release date is October

2017, with an earlier release a possibility.” Id. at 13.

      Our Supreme Court has held 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). See e.g.
      Adoption of J.J., 515 A.2d at 891 (“[A] parent who is incapable
      of performing parental duties is just as parentally unfit as one
      who refuses to perform the duties.”); E.A.P., 944 A.2d at 85
      (holding termination under § 2511(a)(2) supported by mother’s
      repeated incarcerations and failure to be present for child, which
      caused child to be without essential care and subsistence for
      most of her life and which cannot be remedied despite mother’s
      compliance with various prison programs). If a court finds
      grounds for termination under subsection (a)(2), a court must
      determine whether termination is in the best interests of the
      child, considering the developmental, physical, and emotional
      needs and welfare of the child pursuant to § 2511(b). In this
      regard, trial courts must carefully review the individual
      circumstances for every child to determine, inter alia, how a



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      parent’s incarceration will factor into an assessment of the child’s
      best interest.

In re Adoption of S.P., 47 A.3d 817, 830-31 (Pa. 2012).

      After a thorough review of the record in this matter, we conclude that

the orphans’ court did not abuse its discretion by terminating Father’s

parental rights involuntarily. The court properly found that Father has never

provided S.R. with essential parental care, despite having the opportunity to

do so during 2014 after his release from LCP. The court noted that “it may

be commendable that Father, while incarcerated, has made an effort to

become involved in [S.R.’s] life via correspondence, but it is compelling that

he never made any effort to be involved in her life when in the community.”

Orphans’ Court Opinion, 11/13/2015, at 10-11. Moreover, the court noted

that Father cannot presently provide S.R. with parental care and that

Father’s “declared resolve” to care for S.R. upon his eventual release “is

doubtful, given his past parenting history while not incarcerated” and his

“continued criminal activity within the past several years … despite the

existence of his other children, the possibility that S.R. might be his child,

and the later confirmation that S.R. was his child.” Id. at 11. We agree with

the court that Father’s repeated and continued incapacity has caused the

S.R. to be without essential parental care, control or subsistence necessary

for her physical or mental well-being, and the conditions and causes of the

incapacity cannot or will not be remedied. Accordingly, we find no abuse of



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discretion in the orphans’ court determination that CYS met its burden under

subsection (a)(2).

      Next, we consider whether termination was proper under Section

2511(b). The requisite analysis is as follows.

      Subsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
      “Intangibles such as love, comfort, security, and stability are
      involved in the inquiry into the needs and welfare of the child.”
      In addition, we instructed that 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. However, in cases where there is no evidence of a bond
      between a parent and child, it is reasonable to infer that no bond
      exists.   Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (some

citations omitted).

      Here, the orphans’ court concluded that it would be in the best

interests of S.R. for Father’s parental rights to be terminated.    The court

found that S.R. is strongly bonded with her foster parents, who have cared

for her since birth, provide for her daily needs and welfare, and wish to

adopt her. Orphans’ Court Opinion, 11/13/2015, at 14.              The court

determined that, because the two have never met, S.R. has no bond with

Father. Id. Further, the court expressed concern that Father’s continued

incarceration and lack of parental involvement during 2014 when he was not

incarcerated, demonstrate that Father’s “future ability to provide for S.R.’s


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welfare and needs and his ability to forge a bond with her is [sic] merely

speculative.” Id.

         Again, we conclude that the record supports the orphans’ court’s

decision it would be in S.R.’s best interest if Father’s parental rights were

terminated. S.R. is bonded with her foster parents and is thriving in their

care. In contrast, the record establishes that S.R. has no bond with Father.

While Father contends that he will perform his parental duties upon his

release from state prison, it is clear that, even by Father’s estimation, he will

not be able to care for S.R. for another year.       S.R. deserves better than

what Father can offer. See, e.g., In re C.L.G., 956 A.2d at 1008 (“[I]f we

were to permit Mother further opportunity to cultivate an environment where

she can care for C.L.G., we would be subjecting a child, who has been

waiting for more than two years for permanency, to a state of proverbial

limbo in anticipation of a scenario that is speculative at best.”).

         Accordingly, because we conclude that the orphans’ court did not

abuse its discretion by involuntarily terminating Father’s parental rights

pursuant to Sections 2511(a)(2) and (b), we affirm the order of the orphans’

court.

         Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/24/2016




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