J-S30001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: M.L.O., MINOR CHILD               :       IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                                         :
                                         :
APPEAL OF: M.L.O., SR., FATHER OF        :
MINOR CHILD                              :          No. 84 EDA 2015

                Appeal from the Decree December 2, 2014
           In the Court of Common Pleas of Philadelphia County
             Family Court at No(s): CP-51-AP-0000168-2014;
                         CP-51-DP-0001636-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED MAY 20, 2015

     Appellant, M.L.O., Sr. (“Father”), appeals from the decree entered in

the Philadelphia County Court of Common Pleas, which granted the petition

of Appellee, Philadelphia County Department of Human Services (“DHS”), for

involuntary termination of Father’s parental rights as to his minor child,

M.L.O. (“Child”). We affirm.

     The relevant facts and procedural history of this appeal are as follows.

        On September 5, 2012, [DHS] received a General
        Protective Service…Report stating that D.M. (“Mother”)
        tested positive for benzodiazepines and marijuana at the
        time of [Child’s] birth. Mother stated that she had taken a
        few puffs of marijuana for nausea and tested positive for
        benzodiazepines because she had taken a Percocet for pain
        after a recent root canal. However, Percocet is an opiate,
        not a benzodiazepine. The Report further stated that
        Father was allegedly stationed in Iraq.

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       On September 7, 2012, DHS performed clearances for
       T.S., a maternal cousin, as a resource.           DHS further
       learned that Father was not stationed in Iraq, but instead
       incarcerated in New Jersey.             Father is currently
       incarcerated at Southern State Correctional Facility in
       Delmont, New Jersey after being convicted of certain
       persons not to have weapons, N.J.S.A. 2C:39-7(2), which
       states, “A person having been convicted in [New Jersey] or
       elsewhere of a disorderly persons involving domestic
       violence, whether or not armed with or having in his
       possession a weapon…who purchases, owns, possesses or
       controls a firearm is guilty of a crime of the third degree.”

       On September 10, 2012, DHS visited T.S.’s home and
       found it appropriate for [Child]. DHS obtained an [order of
       protective custody] for [Child] and placed him in the care
       of T.S.

       At the Shelter Care Hearing held on September 12, 2012…,
       the [c]ourt lifted the [order of protective custody] and
       ordered the child’s temporary commitment to DHS to
       stand.

                               *    *    *

       At the Adjudicatory Hearing held on October 2, 2012…, the
       [c]ourt    discharged    the   temporary     commitment,
       adjudicated [Child] dependent and committed him to DHS.
       The [c]ourt found that Father was incarcerated.        The
       [c]ourt further ordered Mother be referred to [the Clinical
       Evaluation Unit] for a…drug screen, assessment and
       monitoring. DHS was also ordered to arrange visitation for
       Father and explore family members as possible placement
       resources.

       The Initial Family Service Plan (“FSP”) Meeting was held on
       October 19, 2012, at which time the goal for the child was
       reunification. Only Mother participated in the Meeting.

                               *    *    *

       At the Permanency Review Hearing held on November 16,
       2012…, the [c]ourt found Mother achieved moderate
       compliance with the Permanency Plan, but the Permanency

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         Plan did not apply to Father.        The [c]ourt ordered
         supervised prison visits may be arranged for Father.

         At the Permanency Review Hearing held on February 7,
         2013…, the [c]ourt found Mother had been fully compliant
         with the Permanency Plan, but compliance was not
         applicable to Father. The [c]ourt further ordered DHS
         continue to make efforts to set up visits with Father at the
         prison.

         An FSP Meeting was held on February 26, 2013, at which
         time the goal for the child remained reunification. Both
         Mother and Father did not participate in the Meeting. The
         FSP Objective for Father was to communicate with DHS
         and Delta Community Supports regarding the well-being of
         the child.[1]

         At the Permanency Review Hearing held on August 8,
         2013…, the [c]ourt ordered DHS to make outreach efforts
         to Father.

         An FSP Meeting was held on September 27, 2013, at which
         time the goal for the child was changed to adoption.
         Father did not participate in the FSP Meeting. The FSP
         Objectives for Father remained unchanged.

(Trial Court Opinion, filed January 28, 2015, at 2-6) (internal citations to the

record omitted).

      On April 8, 2014, DHS filed a petition for involuntary termination of

Mother and Father’s parental rights.       The court conducted termination

hearings on September 11, 2014 and December 2, 2014.               Immediately

following the December 2, 2014 hearing, the court entered a final decree

terminating Mother and Father’s parental rights to Child. On December 29,

2014, Father timely filed a notice of appeal, which included a concise

1
  A caseworker from Delta Community Supports coordinated Father’s
supervised visits with Child. (See N.T. Hearing, 9/11/14, at 34-35.)
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statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(a)(2)(i). Mother is not a party to the current appeal.

      Father raises three issues for our review:

         WHETHER THE TRIAL COURT’S DECISION TERMINATING
         FATHER’S PARENTAL RIGHTS UNDER 23 PA.C.S.A. §
         2511(a)(1) WAS SUPPORTED BY COMPETENT EVIDENCE.

         WHETHER THE TRIAL COURT’S DECISION TERMINATING
         FATHER’S PARENTAL RIGHTS UNDER 23 PA.C.S.A. §
         2511(a)(2) WAS SUPPORTED BY COMPETENT EVIDENCE.

         WHETHER THE TRIAL COURT ERRED IN TERMINATING
         FATHER’S PARENTAL RIGHTS UNDER 23 PA.C.S.A. §
         2511(a)(5) AND (a)(8) WHERE THE UNCONTROVERTED
         EVIDENCE ESTABLISHED THAT THE CHILD WAS REMOVED
         FROM MOTHER’S CUSTODY       WHEN FATHER     WAS
         INCARCERATED.

(Father’s Brief at 5).

      On appeal, Father asserts the court could not have terminated his

parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(5) and (8), because

those provisions do not apply to a natural parent who is incarcerated and

does not have custody of the child. Regarding, Section 2511(a)(1), Father

contends he established contact with Child’s social workers in an effort to

secure visitation and participate in planning for Child’s future. Father avers

he utilized all available resources to maintain a relationship with Child and

perform parental duties while incarcerated.    Father claims he visited with

Child at the prison, sent cards and letters to Child, and completed a

parenting class.   Father argues “there is no factual basis in the record to

terminate Father’s parental rights on the theory that he abandoned…Child or

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failed to exercise parental duties….”       (Father’s Brief at 15).     Regarding

Section 2511(a)(2), Father insists he provided the court with the exact date

when New Jersey will release him from custody. Because he can assume full

custody of Child within the next two (2) years, Father submits he can

remedy the conditions that caused Child’s placement. Father concludes the

court erroneously terminated his parental rights. We disagree.

      Appellate review in termination of parental rights cases implicates the

following principles:

         In cases involving termination of parental 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.”

In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

            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.

         In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
         banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
         (internal citations omitted).

            Furthermore, we note that the trial court, as the
            finder of fact, is the sole determiner of the credibility
            of witnesses and all conflicts in testimony are to be
            resolved by [the] finder of fact. The burden of proof
            is on the party seeking termination to establish by
            clear and convincing evidence the existence of

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           grounds for doing so.

        In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
        2002) (internal citations and quotation marks omitted).
        The standard of clear and convincing evidence means
        testimony that is so clear, direct, weighty, and convincing
        as to enable the trier of fact to come to a clear conviction,
        without hesitation, of the truth of the precise facts in issue.
        In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
        may uphold a termination decision if any proper basis
        exists for the result reached. In re C.S., 761 A.2d 1197,
        1201 (Pa.Super. 2000) (en banc). If the court’s findings
        are supported by competent evidence, we must affirm the
        court’s decision, even if the record could support an
        opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]
        (Pa.Super. 2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d

1165 (2008)).

     DHS sought the involuntary termination of Father’s parental rights on

the following grounds:

        § 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:

                                   *    *    *

                  (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.

                                   *    *    *

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           (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.A. § 2511(a)(2); (b).         “Parental rights may be involuntarily

terminated where any one subsection of Section 2511(a) is satisfied, along

with consideration of the subsection 2511(b) provisions.” In re Z.P., supra

at 1117.2

        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…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.

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

     “The   bases   for   termination       of   parental   rights   under   Section

2511(a)(2), due to parental incapacity that cannot be remedied, are not

2
  DHS also sought the involuntary termination of Father’s parental rights
under Section 2511(a)(1), (5), and (8), but we need only analyze Section
2511(a)(2) for purposes of this appeal.
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limited to affirmative misconduct; to the contrary, those grounds may

include acts of refusal as well as incapacity to perform parental duties.” In

re S.C.B., 990 A.2d 762, 771 (Pa.Super. 2010). “Parents are required to

make diligent efforts towards the reasonably prompt assumption of full

parental responsibilities.”   In re A.L.D., 797 A.2d 326, 340 (Pa.Super.

2002). The fundamental test in termination of parental rights under Section

2511(a)(2) was long ago stated in In re Geiger, 459 Pa. 636, 331 A.2d 172

(1975), where the Pennsylvania Supreme Court announced that under what

is now Section 2511(a)(2), “the petitioner for involuntary termination must

prove (1) repeated and continued incapacity, abuse, neglect or refusal; (2)

that such incapacity, abuse, neglect or refusal caused the child to be without

essential parental care, control or subsistence; and (3) that the causes of

the incapacity, abuse, neglect or refusal cannot or will not be remedied.” In

Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998).          Additionally,

incarceration “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….’”     In re

Adoption of S.P., 616 Pa. 309, 332, 47 A.3d 817, 830 (2012).

      Under Section 2511(b), the court must consider whether termination

will best serve the child’s needs and welfare.    In re C.P., 901 A.2d 516


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(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child.” Id.

at 520.   The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state may properly be

considered unfit and have her parental rights terminated. In re B.L.L., 787

A.2d 1007 (Pa.Super. 2001). This Court has said:

            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.

            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…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

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         are not preserved by waiting for a more suitable or
         convenient time to perform one’s parental responsibilities
         while others provide the child with [the child’s] physical
         and emotional needs.

         Where a parent is incarcerated, the fact of incarceration
         does not, in itself, provide grounds for the termination of
         parental rights. However, a parent’s responsibilities are
         not tolled during incarceration. The focus is on whether
         the parent utilized resources available while in prison to
         maintain a relationship with his…child.

In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations and quotation marks omitted).

“[A] parent’s basic constitutional right to the custody and rearing of

his…child is converted, upon the failure to fulfill his…parental duties, to the

child’s right to have proper parenting and fulfillment of his…potential in a

permanent, healthy, safe environment.” Id. at 856.

      Instantly, Father admitted he has been incarcerated since before

Child’s birth. Father applied for all parenting programs offered at his current

prison, but he was eligible to participate in one program only.         Father

successfully completed the parenting program, and the certified record

includes a copy of the certificate of completion. Father testified he has sent

letters and cards “just to try to keep some kind of contact” with Child. (See

N.T. Hearing at 11.) Father maintained contact with DHS to schedule visits

with Child.   Ultimately, Father received one supervised visit in June 2014

and a second supervised visit in August 2014. Father claimed, “The visits

went great.” (Id. at 13).


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      Regarding the duration of his current prison term, Father explained

that his sentence expires on March 23, 2017, and it “wouldn’t be possible”

for him “to take full parental responsibility of” Child until that time. (Id. at

20). Father is eligible for release to a halfway house in March 2015. While

at the halfway house, Father would remain under the supervision of the New

Jersey Department of Corrections. The halfway house, however, would allow

Father to receive furloughs; and he could visit Child.         Additionally, Child

could visit Father on any day of the week at the halfway house; Father’s

current prison provides visitation on weekends only.

      On cross-examination, Father detailed his criminal record, stating he

was first incarcerated for the New Jersey offense in April 2012.             Father

admitted    he   had   spent   approximately   eighty   (80)   days    in   solitary

confinement during his current prison term, and he was not eligible for visits

with Child while in solitary confinement. From 2005 until 2008, Father was

incarcerated in Pennsylvania for a robbery conviction.                Father also

committed certain offenses as a juvenile.

      Sandra Dubose, the DHS social worker, confirmed that Father

maintained satisfactory contact with DHS.      Child, however, shares a bond

with his current caregiver, T.S.:

           He refers to her as mom. Initially, when I received the
           case he was really shy so every time when I go and visit
           he would run and hide behind her dress. He looks to her
           for his basic needs to be met and [they are] bonded. He’s
           also bonded with her children as well.


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(Id. at 26). Ms. Dubose concluded Child would not suffer irreparable harm if

the court terminated Father’s parental rights.

      Kasheeda Boose, the caseworker from Delta Community Supports,

supervised Father’s visits with Child.    Ms. Boose testified that Child was

uncomfortable during the first visit, because T.S. did not remain with Child

for the duration of the visit. Child “was looking at [F]ather trying to figure

out who he was, but there really wasn’t that much interaction.” (Id. at 35).

During the second visit, T.S. remained in the room with Child and Father.

Although Child “was a little more playful” with Father, “he would still run to

[T.S.] as his safety, as his comfort.” (Id. at 35-36). Ms. Bose concluded

there is no parental bond between Father and Child, but there is a parental

bond between T.S. and Child.

      Based upon the foregoing, the court concluded “Father has failed to

remedy the conditions that brought the child into care and [he] will not be

able to provide adequate care for the child in the foreseeable future.” (See

Trial Court Opinion at 8.)   The court further concluded “there was not a

strong bond between Father and his child, [and termination of] Father’s

parental rights would not cause the child irreparable harm….”      (Id.)   We

accept the court’s determinations.

      Father would have Child remain in foster care limbo until after March

2017, when Father’s current prison sentence expires.        Father’s parental

rights cannot be “preserved by waiting for a more suitable or convenient


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time to perform…parental responsibilities,” especially where T.S. already

provides for Child’s physical and emotional needs.       See In re B., N.M.,

supra at 855. See also In re D.C.D., ___ Pa. ___, 105 A.3d 662 (2014)

(holding court did not abuse its discretion in determining father was

incapable of providing care for child, and incapacity would exist at least until

father’s minimum release date of 2018 when child would be seven years old;

child had strong bond with foster family, with whom she had lived nearly all

her life); In re Adoption of S.P., supra (explaining that even upon parole,

Father would reside in halfway house and would eventually need to obtain

housing, employment, and transportation in addition to parenting skills;

court did not abuse its discretion in concluding that Father could not remedy

conditions and causes of incapacity). Thus, the record supports the court’s

conclusion that Father cannot provide the irreducible minimum parental care

for Child and termination of Father’s parental rights was in Child’s best

interests.    See In re Z.P., supra; In re B.L.L., supra.      Accordingly, we

affirm.

       Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/20/2015



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