J-S22003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: I. O. T. K. A/K/A          IN THE SUPERIOR COURT OF
    I. K. , A MINOR                                      PENNSYLVANIA

    APPEAL OF: T. W., FATHER
                                                        No. 3775 EDA 2017


               Appeal from the Decree Entered October 18, 2017
              In the Court of Common Pleas of Philadelphia County
                              Family Court at No(s):
                            CP-51-AP-0000725-2016
                            CP-51-DP-0000150-2016
                           FID# 51-FN-385658-2009


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT,*

MEMORANDUM BY BENDER, P.J.E.:                              FILED JUNE 1, 2018

        T.W. (“Father”) appeals from the decree entered on October 18, 2017,

that granted the petition filed by the Philadelphia Department of Human

Services (“DHS”) to involuntarily terminate Father’s parental rights to I.O.T.K.

a/k/a I.K. (“Child”) and to change the goal to adoption.1, 2 We affirm.

        In its opinion, the trial court set forth a brief history of this case, as

follows:

              Child was born [i]n January [of] 2016. On January 19,
        2016, [DHS] received a General Protective Services (“GPS”)
        report alleging that [] Child and Child’s [M]other [] tested positive
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1T.M.K. (“Mother”) voluntarily relinquished her parental rights to Child in
December of 2016.

2 The transcript of the hearing held on October 18, 2017, notes that Carl
Roberts, Esq., acted in the role of child advocate and that Jay Stillman, Esq.,
participated as the Guardian Ad Litem (GAL).
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      for cocaine at Child’s birth. The report also alleged (1) that Mother
      had used cocaine throughout her pregnancy; (2) that Mother was
      homeless and unprepared to care for Child; (3) that Mother was
      diagnosed with depression, bi-polar disorder and anxiety and (4)
      that Father never visited Child at the hospital. On January 20,
      2016, DHS obtained an Order for Protective Custody (“OPC”) for
      Child and placed [] Child with a family friend. On January 27,
      2016, DHS conducted a Parent Locater Search (“PLS”) for Father
      but DHS was unable to verify any demographic information about
      Father based on insufficient information.

            On February 3, 2016, Child was adjudicated dependent by
      the Honorable Judge Jonathan Irvine. On May 24, 2016, the
      Community Umbrella Agency (“CUA”) issued a Single Case Plan
      (“SCP”) for Father. [] Father’s SCP objective was that he make
      himself available to DHS. Thereafter, Father’s subsequent SCP
      objectives were (1) for Father to submit to drug screenings; (2)
      for Father to complete a Clinical Evaluation Unit (“CEU”)
      assessment; (3) to have supervised visits with [] Child and (4) to
      sign medical consents for [] Child. On or about August 11, 2016,
      DHS filed the underlying Petition to Terminate Father’s Parental
      Rights to Child alleging Father had failed to meet his SCP
      objectives. On October 18, 2017, following a full hearing[,] this
      [c]ourt ruled to terminate [] Father’s parental rights to [] Child
      pursuant to 23 Pa.C.S.[] § 2511(a)(1)(2)(5) and (8) and found
      that termination of [] Father’s rights was in the best interest of []
      Child pursuant to 23 Pa.C.S.[] § 2511(b). Thereafter, Father filed
      a Notice of Appeal on November 15, 2017.

Trial Court Opinion (TCO), 1/2/18, at 2-3 (citations to record omitted).

      Father, who was represented by counsel, attended the October 18, 2017

hearing. Testimony was provided by Brandi Moiyalloh, the CUA case manager,

Patrick Smith, the visitation coach, and Father. In its opinion, the trial court

set forth the following findings relating to the evidence presented:

            At the termination hearing, the CUA Representative testified
      that [s]he personally informed [] Father of his SCP objectives,
      which were (1) for Father [to] submit to drug screenings; (2)
      [that] Father complete a CEU assessment; (3) that Father have
      supervised visits with [] Child and (4) that Father sign medical


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     consents for [] Child. The CUA Representative testified that Father
     did not complete the CEU assessment and that Father’s refusal to
     complete the CEU assessment was in violation of prior [c]ourt
     orders. The CUA Representative testified that Father had not
     provided verification of a mental health assessment nor had
     Father allowed DHS to conduct a complete home assessment. As
     to the home assessment, the CUA Representative testified that
     Father only allowed the CUA Representative to inspect the
     basement, first floor, Father’s bedroom and the upstairs bathroom
     of [] Father’s house. The house was owned by [] Father’s uncle
     and Father had roommates. The CUA Representative testified that
     [] Father did not allow the CUA Representative to inspect
     additional bedrooms. The CUA Representative testified that the
     house lacked smoke detectors and that the dining room had holes
     in the ceiling. Additionally, the bathroom sink did not drain
     properly. The CUA Representative further testified that the house
     was not appropriate for Child.

            The CUA Representative testified that Child’s primary bond
     was with Child’s foster parent. The CUA Representative testified
     that [] Child’s foster parent provided [] Child with love, safety and
     support and Child referred to the foster parent as mother. The
     CUA Representative testified that [s]he had witnessed multiple
     interactions between Child and the foster parent indicative of a
     child/parent bond. Interactions between Child and Father were
     also observed by the CUA Representative. Father had suffered a
     stroke in April 201[7], which greatly inhibited his ability to interact
     with Child. The CUA Representative testified that the termination
     of [] Father’s parental rights would not cause irreparable harm to
     [] Child.

            In addition to the CUA Representative, a visitation coach
     testified as to his observations of the interactions between Child
     and Father. The visitation coach testified that he had witnessed
     multiple interactions between [] Father and Child. The visitation
     coach testified that [] Child suffered separation anxiety when
     away from the foster parent and that [] Father had difficulty caring
     for [] Child due to his physical limitations. The visitation coach
     testified that Father could not easily change Child’s diaper because
     he lacked the fine motor skills due to his [] stroke. The visitation
     coach testified that the child/parent bond between [] Child and
     foster parent was the “best” bond he had ever witnessed. The
     visitation coach also testified that the termination of Father’s
     parental rights would not cause irreparable harm to [] Child.

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Id. at 5-7 (citations to record omitted).

        At the conclusion of the hearing, the court announced its decision from

the bench, stating that it found that “the City has met its burden by clear and

convincing evidence and [it] terminates the parental rights of [F]ather under

2511(a)(1) and (2), and 2511(b).” N.T., 10/18/17, at 60. The court also

changed the goal for Child to adoption.

        Father filed an appeal to this Court, setting forth the following two issues

for our review:

        1. Whether the [t]rial [c]ourt erred by terminating the parental
           rights of Appellant, Father, under 23 Pa.C.S.[] § 2511
           subsections (a)(1) and (a)(2)?

        2. Whether the [t]rial [c]ourt erred by finding, under 23 Pa.C.S.[]
           § 2511(b), that termination of Appellant’s parental rights best
           serves [] Child’s developmental, physical and emotional needs
           and welfare?

Father’s brief at 4.3

        We review an order terminating parental rights in accordance with the

following standard:

              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

____________________________________________


3   Father does not challenge the goal change.

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

In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879

A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:

      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.”

Id. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

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., 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.,

835 A.2d 387, 394 (Pa. Super. 2003).

      We are guided further by the following: Termination of parental rights

is governed by Section 2511 of the Adoption Act, which requires a bifurcated

analysis.

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating parental
      rights. 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

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      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) (citing 23 Pa.C.S. § 2511,

other citations omitted). The burden is upon the petitioner to prove by clear

and convincing evidence that the asserted grounds for seeking the termination

of parental rights are valid. R.N.J., 985 A.2d at 276.

      With regard to Section 2511(b), we direct our analysis to the facts

relating to that section. This Court has explained that:

      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. Id. 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. In re K.Z.S.,
      946 A.2d 753, 762-63 (Pa. Super. 2008). Accordingly, the extent
      of the bond-effect analysis necessarily depends on the
      circumstances of the particular case. Id. at 763.

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

      Notably, the trial court here announced the basis for its order

terminating Father’s parental rights at the end of the hearing, citing only

subsections (a)(1), (2) and (b). See supra. However, the decree and the

opinion issued by the court listed subsections (a)(1), (2), (5), (8) and (b) as

the basis for the issuance of the decree to terminate Father’s parental rights.

In his brief, Father only presents arguments related to subsection (a)(1), (2)



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and (b). In light of this confusion, we decline to rely on either subsections

(a)(5) or (8) as justification for the termination. Rather, because we need

only agree with the trial court as to any one subsection of section 2511(a), as

well as section 2511(b), see In re B.L.W., 843 A.2d 380, 384 (Pa. Super.

2004), we choose to address and analyze the court’s decision to terminate

Father’s parental rights under section 2511(a)(1) and (b), which provide:

      (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.

            ***

      (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)(1), (b).

      In In re Z.P., 994 A.2d 1108 (Pa. Super. 2010), this Court provided

direction relating to what considerations need to be addressed when reviewing




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a trial court’s decision to terminate parental rights under various subsections

of 2511(a). Specifically, relating to subsection (a)(1), the Z.P. Court stated:

      A court may terminate parental rights under Section 2511(a)(1)
      where the parent demonstrates a settled purpose to relinquish
      parental claim to a child or fails to perform parental duties for at
      least the six months prior to the filing of the termination petition.
      In re C.S., [761 A.2d 1197 (Pa. Super. 2000)]. The court should
      consider the entire background of the case and not simply:

            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) (citing In re D.J.S.,
      737 A.2d 283 (Pa. Super. 1999)).

In re Z.P., 994 A.2d at 1117 (emphasis in original).

      The thrust of Father’s argument in regard to subsection (a)(1) centers

on the testimony provided by Ms. Moiyalloh, the CUA case manager, Mr.

Smith, the visitation coach, and his own testimony. Essentially, he attempts

to identify reasons why he could not or did not need to comply with the case

plan objectives. As an example, he acknowledges that he had not submitted

for a drug assessment at CEU, because he had had drug screens performed

at family court. Father also attempts to excuse his failure to submit to the

drug assessment by explaining his missed appointments were due to his bad

health and a lack of success in his ability to reschedule. He notes that he had

not signed consents for Child, but that was because no consents were needed.

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As for Father’s housing, he admits “that he does not currently have

appropriate housing, but is waiting for it and also is anticipating help from

family members.”      Father’s brief at 10.      Father also acknowledges the

visitation coach’s testimony relating to “over 20 supervised visits[,]” which

“did not go well because [] Child had separation anxiety from her foster

parent” and Father’s physical limitations. Id. Despite his recognition of the

testimony presented by DHS’s witnesses, Father claims that he is ready to

perform all parental duties.

      In response to Father’s assertions, the brief submitted by the GAL points

out that Father never “parented Child in his custodial care” and had no contact

with her for more than a year-long period after she was found to be

dependent.    The GAL also noted Father’s lack of appropriate housing, his

physical inability to care for Child, and his failure to solicit family assistance.

The GAL acknowledges Father’s participation in some of the supervised visits

with Child, but notes Father’s failure to comply “with the court-ordered

evaluations intended to assess his potential for reunification, or to plan and

prepare for reunification[.]” GAL’s brief at 16.

      Thus, based upon its findings and credibility determinations, the court

concluded that DHS had carried its burden of proving that Father refused or

failed to perform his parental duties for a period of at least six months prior

to the filing of the petition to terminate his parental rights. After our thorough




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review, we determine that the record supports the trial court’s findings and

its conclusion; it did not abuse its discretion in so holding.

      We next turn to Father’s issue in which he claims that the termination

of his parental rights would not best serve Child’s developmental, physical and

emotional needs and welfare pursuant to section 2511(b).             In his brief

following a recitation of the law, Father provides a short recitation of the facts

on which he relies:

             The current [c]ase [m]anager, Ms. Moiyalloh, testified that
      [] Child has a loving bond with the foster parent. Mr. Patrick
      Smith, the current [v]isitation [c]oach for Father and Child,
      indicated that [] Child suffers from separation anxiety once she
      realizes that she is being taken from her foster parent for visits
      with [] Father.

             Mr. Smith testified that [] Child is becoming more
      comfortable around Father during visits. Father believes that the
      visits go well. Father indicated that [] Child is “fun and loving
      towards me” and during the visits, “she jumps on me and has a
      good time with me.” Father indicated that he has a support
      system in place to help take care of his Child if the Child is
      returned. Father testified that he is ready to be reunified with []
      Child.

Father’s brief at 13-14 (citations to N.T. omitted). However, the court found

that although Father loves Child, “there exist[s] a profound child/parent bond

between [] Child and the foster parent.” TCO at 7. Therefore, it concluded

that termination of Father’s parental rights would be in Child’s best interests.

      Again, our thorough review of the record reveals that the trial court did

not abuse its discretion in ordering the termination of Father’s parental rights.

The record supports the court’s findings and conclusion that Father’s refusal


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or failure to perform parental duties occurred for a period of at least six

months prior to the filing of the petition. Moreover, the evidence shows that

Child has bonded with foster parent, who more than satisfies her needs.

Additionally, we note that a child’s life “simply cannot be put on hold in the

hope that [a parent] will summon the ability to handle the responsibilities of

parenting.”    In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (citation

omitted). “[A] parent’s basic constitutional right to the custody and rearing

of [his or her] child is converted, upon the failure to fulfill his or her parental

duties, to the child’s right to have proper parenting and fulfillment of his or

her potential in a permanent, healthy, safe environment.” In re B.,N.M., 856

A.2d at 856. Since Father has not convinced us otherwise, we conclude that

he is not entitled to any relief.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/18




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