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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.A., A MINOR        :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                                         :
APPEAL OF: T.J.A., FATHER                :          No. 948 EDA 2018


                   Appeal from the Decree, February 28, 2018,
              in the Court of Common Pleas of Philadelphia County
             Family Court Division at Nos. CP-51-AP-0000101-2018,
                            FID#51-FN-000992-2011


BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED SEPTEMBER 07, 2018

        T.J.A. (“Father”) appeals from the February 28, 2018 decree granting

the petition of the Department of Human Services (“DHS”) to involuntarily

terminate his parental rights to his minor1 female child, J.A. a/k/a J.A.S.

(“Child”), pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), and (b).2 After

careful review, we affirm.

        The trial court summarized the underlying facts and procedural history

of this case as follows:

              On January 31, 2017, [DHS] received a General
              Protective Services (“GPS”) report alleging that the
              mother of Child was incorrectly mixing Child’s infant
              formula. The report further alleged that Child was
              underweight as result of the improper feeding. The

1   Child was born in April 2016.

2 The record reflects that the trial court’s February 28, 2018 decree also
terminated the parental rights of M.E. (“Mother”) to Child. Mother is not a
party to this appeal.
J. S51031/18


              report also alleged that Mother had been diagnosed
              with mental health issues and that she exhibited
              aggressive behavior. DHS met Mother, Father and
              Child, on February 3, 2017 to discuss the allegations
              but thereafter the family failed to maintain contact
              with DHS. Thereafter, DHS reestablished contact
              and met with the family on April 10, 2017. It was
              determined on that date that Child remained
              underweight. On the same day, DHS obtained an
              Order for Protective Custody (“OPC”) and Child was
              placed in foster care. On April 19, 2017, the Child,
              following a hearing, was adjudicated dependent.

              On December 11, 2017, a revised Single Case Plan
              (“SCP”) was created for Mother and Father. The
              objectives for Father were (1) to participate in all
              bi-weekly supervised visits of the Child; (2) to attend
              parenting classes; (3) to participate in a parenting
              capacity evaluation; (4) to engage in housing and
              employment classes; and (5) Father would comply
              with the court ordered recommendations of the
              Clinical Evaluation Unit’s (“CEU”) evaluation and
              assessment for drug and alcohol treatment. The
              underlying Petition to Terminate Father’s Parental
              Rights was filed on February 5, 2018 after Father
              and Mother failed to meet their SCP objectives.

Trial court opinion, 5/11/18 at 2-3 (citations and footnote omitted).

      On February 28, 2018, the trial court conducted a termination hearing;

Father was present for said hearing and was represented by counsel.

Following the hearing, the trial court entered a decree involuntarily

terminating      Father’s    parental    rights    to    Child    pursuant   to

Sections 2511(a)(1), (2), (5), and (b), and changed the goal to adoption.

(See notes of testimony, 2/28/18 at 53-55.) In reaching this decision, the

trial court noted during the hearing that “aggravated circumstances” existed

as to Father given that his parental rights to another one of his children had


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been involuntarily terminated in November 2017.        (See id. at 30.)    On

March 22, 2018, Father filed a timely notice of appeal to this court, together

with a concise statement of errors complained of on appeal, in accordance

with Pa.R.A.P. 1925(2)(i).     On May 11, 2018, the trial court filed its

Pa.R.A.P. 1925(a) opinion.

      Father raises the following issues for our review:

            1.     Whether the trial court committed reversible
                   error,   when    it   involuntarily  terminated
                   [F]ather’s   parental    rights    where   such
                   determination was not supported by clear and
                   convincing evidence under the adoption act,
                   23 P[a].C.S.A. § 2511(a)(1) (2) and (5)[?]

            2.     Whether the trial court committed reversible
                   error   when   it   involuntarily terminated
                   [F]ather’s parental rights without giving
                   primary consideration to the effect that the
                   termination would have on the developmental,
                   physical and emotional needs of [C]hild as
                   required by the adoption act, 23 P[a].C.S.A.
                   § 2511(b)[?]

            3.     Whether the trial court erred because the
                   evidence was overwhelming and undisputed
                   that [F]ather demonstrated a genuine interest
                   and sincere, persistent, and unrelenting effort
                   to maintain a parent-child relationship with
                   [C]hild[?]

Father’s brief at 8.

      In matters involving involuntary termination of parental rights, 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


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             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 internal quotation

marks omitted). “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) (citation omitted). “[I]f 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) (citation omitted).

      The termination of parental rights is governed by Section 2511 of the

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

analysis of the grounds for termination followed by the needs and welfare of

the child.

             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


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            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

have defined “clear and convincing evidence” as that which 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.”

In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (citation and

quotation marks omitted).

      In this case, the trial court terminated Father’s parental rights

pursuant to Sections 2511(a)(1), (2), (5), and (b), which provide as follows:

            § 2511. Grounds for involuntary termination

            (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.




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                (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.

                ....

                (5)    The child has been removed from
                       the care of the parent by the court
                       or under a voluntary agreement
                       with an agency for a period of at
                       least six months, the conditions
                       which led to the removal or
                       placement of the child continue to
                       exist, the parent cannot or will not
                       remedy those conditions within a
                       reasonable period of time, the
                       services or assistance reasonably
                       available to the parent are not
                       likely to remedy the conditions
                       which led to the removal or
                       placement of the child within a
                       reasonable period of time and
                       termination of the parental rights
                       would best serve the needs and
                       welfare of the child.

                ....

          (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


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                  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.A. § 2511(a)(1), (2), (5), and (b). We need only agree with the

trial court as to any one subsection of Section 2511(a), in addition to

Section 2511(b), to affirm an order terminating parental rights. In re M.M.,

106 A.3d 114, 117 (Pa.Super. 2014).

      Instantly, we analyze the trial court’s decision to terminate under

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

            In order to terminate parental rights pursuant to
            23 Pa.C.S.A. § 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.

            The 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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015)

(citations, internal quotation marks, and indentation omitted).

      Upon review, we find that there was clear and convincing evidence to

support the trial court’s termination of Father’s parental rights to Child,


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pursuant to Section 2511(a)(2).      The record establishes that “incapacity”

under Section 2511(a)(2) exists given that Father has demonstrated a

repeated and continual inability to remedy the problems that led to Child’s

placement by failing to satisfy any of his SCP objectives.       As noted, DHS

became involved in this matter after concerns arose regarding Child’s being

significantly underweight. (Notes of testimony, 2/28/18 at 5.) At the time

of the February 28, 2018 termination hearing, Child was 22 months old and

had been in a pre-adoptive foster home for nearly 11 months. (Id. at 5-6.)

Jessica Law, the Community Umbrella Agency case manager assigned to this

matter, testified that Father’s SCP objectives for reunification with Child

included:      (1) housing     education    classes;   (2)   parenting   classes;

(3) participation in supervised visitation with Child; (4) participation in a CEU

evaluation to determine drug and alcohol abuse; and (5) participation in a

parenting capacity evaluation. (Id. at 14-15.)

      Law testified that as of the date of the termination hearing, Father had

yet to participate in a parenting capacity evaluation with Forensic Mental

Health Services, LLC. (Id. at 15-16.) Specifically, Father failed to show up

for his first scheduled evaluation on September 19, 2017, and arrived late to

his January 3, 2018 evaluation, resulting in the appointment being

rescheduled. (Id.) Law also testified that Father had failed to participate in

a drug or alcohol evaluation with CEU or complete court-ordered random

drug screening. (Id. at 16.)



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      Law next testified that Father had failed, in large part, to take

advantage of the housing, financial counseling, and parenting services

offered by the Achieving Reunification Center (“ARC”). Specifically, Father

was twice referred to ARC on April 19 and December 15, 2017, but as of the

date of the termination hearing, had attended one housing class, no financial

counseling classes, and four parenting classes.      (Id. at 17-18.)    Law also

testified that Father failed to establish any stability in his life with regard to

housing, had recently moved into a boarding house with Child’s Mother that

the trial court deemed inappropriate for reunification, and did not provide

Law a mailing address until January 2018, three weeks before the

termination hearing. (Id. at 16, 53-54.)

      Additionally, the record reveals that Father has only sporadically

visited Child.   At the initial April 19, 2017 adjudicatory hearing, the trial

court granted Father bi-weekly supervised visitation, but by the July 19,

2017 permanency review hearing, Father’s visitation had been reduced to

weekly due to his inconsistent attendance. (Id. at 18-19.) Thereafter, the

trial court further reduced Father’s visitation with Child to bi-weekly in

November 2017. (Id.) Law testified that even after these changes, Father

had only attended five of the seven scheduled bi-weekly visitation

appointments with Child since the last court date. (Id.)

      Father, in turn, testified on his own behalf at the termination hearing

and stated that he missed supervised visitation with Child because the trial



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court had precluded him from taking his drug tests; Father, however, was

unable to explain exactly how the trial court had denied him his drug

screenings. (Notes of testimony, 2/28/18 at 43-45.) Father also indicated

that he was “somewhat” in a position to provide financial support for Child,

but could not explain why he had failed to satisfy his SCP objectives thus far,

and that he was “not making no [sic] excuses” and felt he had “done [his]

part.” (Id. at 46-47.)

      Based on the foregoing, we agree with the trial court that there exists

clear and convincing evidence of record to justify the termination of Father’s

parental   rights    to   Child   pursuant     to   Section   2511(a)(2).     See

In re Adoption of C.D.R., 111 A.3d at 1216.

      Next,     we   consider     whether    termination      was   proper   under

Section 2511(b).     With regard to Section 2511(b), our supreme court has

stated as follows:

              [I]f the grounds for termination under subsection (a)
              are met, a court “shall give primary consideration to
              the developmental, physical and emotional needs
              and welfare of the child.” 23 Pa.C.S.[A.] § 2511(b).
              The emotional needs and welfare of the child have
              been properly interpreted to include [i]ntangibles
              such as love, comfort, security, and stability. . . .
              [T]his Court held that the determination of the
              child’s “needs and welfare” requires consideration of
              the emotional bonds between the parent and child.
              The “utmost attention” should be paid to discerning
              the effect on the child of permanently severing the
              parental bond.      However, as discussed below,
              evaluation of a child’s bonds is not always an easy
              task.



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In re T.S.M., 71 A.3d at 267 (internal case citations omitted).

      “[I]n 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) (citations omitted).   Additionally, when evaluating a parental bond,

“the court is not required to use expert testimony.        Social workers and

caseworkers can offer evaluations as well.      Additionally, Section 2511(b)

does not require a formal bonding evaluation.” In re Z.P., 994 A.2d 1108,

1121 (Pa.Super. 2010) (citations omitted).

      Upon review, we find that the record supports the trial court’s

determination that the termination of Father’s parental rights was clearly in

the best interests of Child, pursuant to Section 2511(b). At the termination

hearing, Law testified that Child had developed a strong “parental” bond

with her foster parents, whom she has resided with since August 2017, and

that they provide for her medical, emotional, and daily needs.        (Notes of

testimony, 2/28/18 at 12-13.) On the contrary, Law indicated that Father

had failed to provide for any of Child’s daily needs since she was placed into

DHS custody, and had never attended Child’s medical appointments nor

provided her with any financial support. (Id. at 19-20.) Law opined that

Child would not suffer any irreparable harm if Father’s parental rights were

terminated and that adoption would clearly be in her best interests. (Id. at



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20.) The trial court found the testimony of Law to “be credible and accorded

[it] great weight.” (Trial court opinion, 5/11/18 at 6.)

        This court has long recognized that “[a] child’s life, happiness and

vitality simply cannot be put on hold until the parent finds it convenient to

perform parental duties.” In the Matter of the Adoption of A.M.B., 812

A.2d 659, 675 (Pa.Super. 2002).       Our standard of review requires us to

accept the trial court’s findings of fact and credibility determinations where,

as here, they are supported by the record. See In re T.S.M., 71 A.3d at

267. Accordingly, we decline to reweigh the evidence and reassess witness

credibility.

        Based on the foregoing, we conclude that the trial court did not abuse

its discretion by involuntarily terminating Father’s parental rights to Child

pursuant to Section 2511(a)(1) and (b).          Accordingly, we affirm the

February 28, 2018 decree of the trial court.

        Decree affirmed.

        Nichols, J. joins this Memorandum.

        Dubow, J. did not participate in the consideration or decision of this

case.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 9/7/18




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