J-S32015-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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



APPEAL OF: E.M., FATHER


                                                No. 3655 EDA 2015


             Appeal from the Decree entered November 23, 2015,
             in the Court of Common Pleas of Philadelphia County,
                             Family Court, at No(s):
                           CP-51-AP-0000412-2015,
                            CP-51-DP-0002141-2013

BEFORE: BOWES, MUNDY, and PLATT*, JJ.

MEMORANDUM BY BOWES, J.:                               FILED MAY 19, 2016

      E.M. (“Father”), appeals the November 23, 2015 decree involuntarily

terminating his parental rights to his son, M.M., born during February 2013.1

We affirm.

      The trial court set forth the following factual and procedural history of

this case, in part:

      This family was known to DHS [the Philadelphia Department of
      Human Services] long before [M.M.] became involved in
      dependency proceedings. When [M.M.] was born[,]. . . [Mother]
      was a minor under DHS supervision with her aunt.         At a
      September 17, 2013, hearing the [c]ourt ordered that Mother be

* Retired Senior Judge assigned to the Superior Court.
1
  By separate decree dated November 23, 2015, the trial court voluntarily
terminated the parental rights of L.A. (“Mother”).
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      placed in an appropriate mother-baby setting with DHS. . . .
      Immediately after the hearing[,] Mother absconded and her
      whereabouts were unknown until September 23, 2013. On that
      date[,] she contacted DHS and asked to be [returned to
      place[ment]. . . . On October 24, 2013, DHS filed a petition to
      remove [M.M.] from Mother’s care. At a November 4, 2013 . . .
      hearing [M.M.] was adjudicated dependent and committed to
      DHS based on the present inability of Mother to provide
      appropriate care. . . . From [M.M.]’s birth until Mother left
      [M.M.] in the care of DHS, Father [had scant] contact with
      [M.M.]. He only saw [M.M.] from time to time, when Mother
      brought [M.M.] around. Father’s last visit with [M.M.] was at
      [his] first birthday. He never initiated any contact with [M.M.].
      Mother confirmed Father’s [identity] in April 2015.

      Father was incarcerated in the Curran Fromhold Correctional
      Facility (“CFCF”) from October 10, 2014, when he was convicted
      of drug possession with a firearm. Father had prior arrests for
      gun and drug charges. He was sentenced to two and a half
      years imprisonment, with five years of probation upon release.
      Father is serving his sentence in a state facility in Camp Hill,
      Pennsylvania.

Trial Court Opinion, 1/15/16, at 1–2 (citations to record omitted).

      On June 26, 2015, DHS filed a petition for the involuntary termination

of Father’s parental rights and a petition for goal change to adoption.    A

hearing was held on October 5, 2015, when DHS presented Father’s

testimony by telephone from prison, and Crystal Zuggi, the Community

Umbrella Agency (“CUA”) case manager. These same witnesses testified at

a November 23, 2015 hearing.

      By decree dated November 23, 2015, the trial court involuntarily

terminated Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2),




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(5), (8), and (b).2      In addition, by permanency review order dated

November 23, 2015, the trial court changed M.M.’s placement goal to

adoption. Father timely filed a notice of appeal and a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). 3

The trial court filed its Rule 1925(a) opinion on January 15, 2016.

      On appeal, Father raises the following issues for our review:

      1. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of [F]ather . . . pursuant to 23
      Pa.C.S. [§] 2511(a)(1) where [F]ather presented evidence that
      he was not [informed] until recently that he was the potential
      father and only received the paternity tests results several
      weeks before the termination hearing and therefore was not


2
  The trial court explained that the involuntary termination petition did not
include § 2511(a)(8) as a ground for termination. Trial Court Opinion,
1/15/16, at 1. Therefore, on December 9, 2015, following Father’s notice of
appeal, the trial court amended the decree by removing § 2511(a)(8) as a
basis for the termination of Father’s parental rights. A trial court may
modify an order to correct a clerical error that is clear in the record even
though it no longer retains jurisdiction. See Stockton v. Stockton, 698
A.2d 1334, 1337 n.3 (Pa.Super. 1997). Moreover, to the extent that the
trial court relinquished its jurisdiction to amend the decree following Father’s
notice of appeal to this Court, the court’s mistaken reference to §
2511(a)(8) is harmless insofar as DHS need only establish one of the
statutory grounds for termination under § 2511(a) and the record supports
the court’s finding that the agency satisfied its burden of proof under
§2511(a) (1). Thus, no relief is due.
3
  While Father purported to file an appeal from the goal change order, he
failed to present any challenges to it in his Rule 1925(b) statement or his
brief. Thus, we do not address that claim herein.              See Pa.R.A.P.
1926(b)(4)(vii) (Issues not included in the Statement and/or not raised in
accordance with the provisions of paragraph (b)(4) are waived); In re
W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011) (“Where an appellate brief
fails to provide any discussion of a claim with citation to relevant authority
or fails to develop the issue in any other meaningful fashion capable of
review, that claim is waived.”).
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      provided with an opportunity to perform his parental duties for
      his child[?]

      2. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of [F]ather . . . pursuant to 23
      Pa.C.S.[] [§] 2511(a)(2) where [F]ather presented evidence that
      he will remedy his situation by meeting his goal of contact with
      his son and will be released from prison in the near future and
      until he is released his sister is able to care for his child and has
      the present capacity to care for his child in his home with his
      current wife[?]

      3. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of [F]ather . . . pursuant to 23
      Pa.C.S. [§] 2511(a)(5) where evidence was provided to establish
      that the child . . . was not in [F]ather’s care when he was
      originally placed by DHS, and furthermore, evidence was
      presented to show that [F]ather is capable of caring for his
      child[?]

      4. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of [F]ather . . . pursuant to 23
      Pa.C.S. [§] 2511(a)(8) where evidence was presented to show
      that Father is capable of caring for his child even though he was
      never provided with reasonable efforts for reunification with his
      son[?]

      5. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of [F]ather . . . pursuant to 23
      Pa.C.S. [§] 2511(b) where evidence was presented that
      established the child . . . never had a chance for a close bond
      with his father and also has never been allowed to have a very
      close relationship with his paternal aunt[?] Both [F]ather and
      paternal aunt have never been given a chance to establish this
      bond.

Father’s brief at 7.

      We consider Father’s issues mindful of our well-settled standard of

review.

      The standard of review in termination of parental rights cases
      requires appellate courts to accept the findings of fact and

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     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).

     Termination of parental rights is governed by § 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). The

burden is upon the petitioner to prove by clear and convincing evidence that

the asserted statutory grounds for seeking the termination of parental rights

are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009).




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      This Court need only agree with any one subsection of § 2511(a),

along with § 2511(b), in order to affirm the termination of parental rights.

In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). We conclude

that the trial court in this case properly terminated Father’s parental rights

pursuant to § 2511(a)(1) 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:

         (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).

      We have explained,

      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


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     parental duties. In re Adoption of R.J.S., 901 A.2d 502, 510
     (Pa.Super. 2006). In addition,

           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 [s]ection 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 Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88,
     91 (Pa. 1998).

           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 or her
           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).

     Id. at 92 (citation omitted).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008).

     Parental duty is defined as follows:

     There is no simple or easy definition of parental duties. Parental
     duty is best understood in relation to the needs of a child. 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
     requires affirmative performance.

     This affirmative duty encompasses more than a financial
     obligation; it requires continuing interest in the child and a
     genuine effort to maintain communication and association with
     the child.



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     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.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004).

     With respect to the termination of parental rights of incarcerated

persons under § 2511(a)(1), in In re Adoption of S.P., 47 A.3d 817 (Pa.

2012), our Supreme Court discussed In re Adoption of McCray, 331 A.2d

652 (Pa. 1975), as follows:

     Applying in McCray the provision for termination of parental
     rights based upon abandonment, now codified as § 2511(a)(1),
     we noted that a parent “has an affirmative duty to love, protect
     and support his child and to make an effort to maintain
     communication and association with that child.” Id. at 655. We
     observed that the father’s incarceration made his performance of
     this duty “more difficult.” Id.

S.P., 47 A.3d at 828. The S.P. Court continued:

         [A] parent’s absence and/or failure to support due to
         incarceration is not conclusive on the issue of
         abandonment.       Nevertheless, we are not willing to
         completely toll a parent’s responsibilities during his or her
         incarceration. Rather, we must inquire whether the
         parent has utilized those resources at his or her
         command while in prison in continuing a close
         relationship with the child. Where the parent does not

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         exercise reasonable firmness in declining to yield to
         obstacles, his other rights may be forfeited.

      [McCray,] at 655 (footnotes and internal quotation marks
      omitted).

S.P., supra (emphasis added).

      Instantly, Father argues that his conduct does not warrant the

termination of his parental rights under § 2511(a)(1) because he “only very

recently learned the results of paternity test.”    Father’s brief at 15.   In

addition, Father asserts that his only established Family Service Plan (“FSP”)

goal was to maintain contact with his son, “which he had no control over.”

Id. Further, Father asserts that he was not provided an attorney until June

of 2015. We reject Father’s claims.

      To the extent that Father implies he had no obligation to perform his

parental duties until he received his paternity test results, we disagree.

Crystal Zuggi, the CUA case manager, testified she became involved with

this family in April of 2015, and Mother first named Father as M.M.’s

biological father during a court hearing that same month. N.T., 10/5/15, at

2; N.T., 11/23/15, at 8. Ms. Zuggi testified she spoke to Father on May 1,

2015, at which time he requested a paternity test. N.T., 11/23/15, at 9-10.

She testified she informed Father of the results of the paternity test on

September 24, 2015. N.T., 10/5/15, at 30.

      In Z.S.W., supra, this Court rejected the rationale of the trial court in

denying the involuntary termination petition under § 2511(a)(1) because the


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father “was only required to attempt the level of parenting consistent with

his and the agency’s knowledge of parentage.”        Z.S.W., 946 A.2d at 731

(internal quotations omitted). We explained, “[t]he crux of the trial court’s

statement is that [the father] was not required to perform any parental

duties until he received the results of the paternity test. To adopt the trial

court’s rationale would relieve all fathers of their parental duties until their

parentage was confirmed by a paternity test.” Id. As such, we reversed the

order and remanded the case.

      Presently, the record demonstrates that Father was aware of his

possible paternity of M.M. before his incarceration in October of 2014. N.T.,

11/23/15, at 23. Father testified that he attended M.M.’s first birthday party

during 2014, while his son was in mother/baby placement with Mother. Id.

at 16.   Father explained that when he argued with Mother, she would

attempt to provoke him by stating that M.M. was not his child.              Id.

Chastened by the rebuke, Father described feeling that “[he would] still be

there for the child [but] at the same time in your heart you still want to get

[a] DNA test, that’s all I wanted.” Id. at 17. On cross-examination by the

Child Advocate, Father testified that he knew M.M. was in placement prior to

his incarceration, but he still did not seek visitation. N.T., 10/5/15, at 18-

19. He proffered no justification for neglecting to request visitation. Indeed,

upon inquiry on why he did not call DHS and ask for visitation, Father

responded, “I didn’t — I just didn’t.” Id. at 19. Likewise, Father conceded


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that his interactions with his son were minimal. He explained, “[I saw M.M.]

a couple times when [Mother] brung [sic] him around. . . .” Id. at 18.

      As it relates with Father’s lack of compliance with his goals under the

Family Service Plan (“FSP”), Ms. Zuggi testified that, in April 2015, she sent

FSP objectives to Father that included “to make outreach to [M.M.], to have

a relationship with [M.M.].” N.T., 10/5/15, at 34. Ms. Zuggi suggested that

Father accomplish this objective through telephone contact with M.M. or by

writing letters to his son. Id. at 35. Ms. Zuggi rated Father’s compliance

with his FSP objectives as “none.” Id. Indeed, she noted that, since April of

2015, Father failed to provided her with any cards to give to M.M. Id. at 26.

Further, Ms. Zuggi observed that, although she provided his prison counselor

with her contact information in April of 2015, Father never initiated contact

with her. Id. at 24–25. Finally, she highlighted that Father did not request

pictures of M.M. until September 24, 2015, the date that she informed

Father of the paternity test results. Id. at 30, 33.

      Based on the foregoing evidence, we discern no abuse of discretion by

the trial court in terminating Father’s parental rights pursuant to §

2511(a)(1).   At best,   Father displayed, “a merely passive interest in the

development of” M.M. throughout his life despite the knowledge that M.M.

may be his son. In re B.,N.M., supra. Father shirked all of his parental

duties prior to his incarceration. He did not have any contact with M.M. or

Mother while the two remained in DHS’ mother/baby foster care, ostensibly


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to avoid condemnation for having impregnated fifteen-year-old Mother while

he was approximately twenty-three. Thereafter, Father only saw his son on

the few occasions that Mother initiated contact, and he has not had any

contact with the child since February 2014.

      Even after Ms. Zuggi contacted Father in prison during May 2015,

Father showed little, if any, interest in M.M.          He did not initiate further

contact with Ms. Zuggi, and he did not utilize resources while in prison to

demonstrate interest in M.M. The sum total of Father’s attentiveness to his

son is that, upon the confirmation of paternity during September of 2015,

Father   requested   photographs    of   the   child.      As   such,   the   record

demonstrates that Father disregarded the needs of his son and failed to

perform his parental duties both before and during his incarceration, which is

far in excess of the requisite six-month statutory period.          Thus, the trial

court did not err in finding that DHS established by clear and convincing

evidence the statutory grounds to terminate Father’s parental rights

pursuant § 2511(a)(1).

      In his final issue, Father argues the trial court abused its discretion in

terminating his parental rights pursuant to § 2511(b) because M.M. “has

never been provided the opportunity to develop a bond with [him]”, or “to




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develop a relationship with his stepmother, siblings and paternal aunt.”4

Father’s brief at 18. We disagree.

      With respect to § 2511(b), this Court has explained the requisite

analysis 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. 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 63.

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

      Our Supreme Court stated that, “[c]ommon sense dictates that courts

considering termination must also consider whether the children are in a

pre-adoptive home and whether they have a bond with their foster parents.”

In re T.S.M., 71 A.3d 251, 268 (Pa. 2013). Moreover, the Court directed

that, in weighing the bond considerations pursuant to § 2511(b), “courts

must keep the ticking clock of childhood ever in mind.”     Id. at 269.    The

T.S.M. Court observed that, “[c]hildren are young for a scant number of

4
 Father testified that he married on October 2, 2014, and that he has four
daughters from prior relationships, who reside in South Carolina. N.T.,
11/23/15, at 21-22. Further, Father testified that he has a sister, with
whom he would like M.M. to reside. N.T., 10/5/15, at 21-22.
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years, and we have an obligation to see to their healthy development

quickly.   When courts fail . . . the result, all too often, is catastrophically

maladjusted children.” Id.

      In this case, there is no evidence that a bond exists between M.M. and

Father. Indeed, Ms. Zuggi testified that M.M. is not able to identify anyone

as his father. N.T., 10/5/15, at 27. She stated that M.M. has resided with

the same foster mother since he was “a few months old,” and that M.M.

shares a bond with her.      Id. at 27-28.    Further, Ms. Zuggi observed that

M.M. has resided in the same pre-adoptive home for approximately two

years. Id. Finally, she opined that, if M.M. was removed from his current

placement, he would suffer harm. Id. at 28. Based on the evidence in the

certified record, we reject Father’s argument with respect to § 2511(b).

Father’s failure to perform his parental duties during M.M.’s lifetime impeded

the development of any bond between him and his son.           Accordingly, we

affirm the decree terminating Father’s parental rights pursuant to 23 Pa.C.S.

§ 2511(a)(1) and (b).

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/19/2016


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