J-S35043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF: K.L.M., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: K.A.M., NATURAL                 :
    FATHER                                     :
                                               :
                                               :
                                               :   No. 272 WDA 2017

                 Appeal from the Order Entered January 6, 2017
             in the Court of Common Pleas of Westmoreland County
                      Orphans’ Court at No(s): 85 of 2016


BEFORE:      LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED OCTOBER 15, 2018

        Appellant, K.A.M. (“Father”), files this appeal from the order dated

January 5, 2017, and entered on January 6, 2017,1 in the Westmoreland

County Court of Common Pleas, granting the petition of the Westmoreland



____________________________________________


1 The subject order was dated January 5, 2017. However, the clerk did not
provide and docket notice pursuant to Pa.R.C.P. 236(b) until January 6, 2017.
Our appellate rules designate the date of entry of an order as “the day on
which the clerk makes the notation in the docket that notice of entry of the
order has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b).
Further, our Supreme Court has held that “an order is not appealable until it
is entered on the docket with the required notation that appropriate notice
has been given.” Frazier v. City of Philadelphia, 557 Pa. 618, 621, 735
A.2d 113, 115 (1999).

*   Former Justice specially assigned to the Superior Court.
J-S35043-17


County Children’s Bureau (the “Agency”) and involuntarily terminating

Father’s parental rights to his minor son, K.L.M. (“Child”), born in December

of 2013, pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).2, 3 After a

careful review, we affirm the trial court’s order.

       The trial court summarized the relevant procedural and factual history

as follows:

              This matter stems from an underlying dependency case at
       No. CP-65-DP-[]-2016 (the “dependency case”). The minor child,
       K.L.M., was born [in] December [of] 2013, with biological mother
       testing positive for marijuana. This initiated involvement with the
       [Agency]. A case was opened to initiate services for the biological
       mother and Father with regard to K.L.M. and his half-brother, who
       was also under the care of the biological mother and Father, and
       who had previously been the subject of several agency referrals.
       During the assessment phase, numerous concerns were brought
       to light, including inadequate housing and parenting, and mental
       health concerns for both parents, including Father’s persistent
       issue with anger.
             K.L.M. was adjudicated dependent on June 19, 2014. This
       was based on an incident in which the biological mother was
       present in her apartment with the minor child, his half-sibling, and
       two men. Mother and one of the men became involved in a
       physical altercation in which K.L.M.’s crib was shoved and knocked
       over with the child inside. The same men also choked K.L.M.’s
       three-year-old half-brother. For approximately the first year after
       the child’s adjudication, Father struggled to complete various
       services. He was initially ordered into anger management,
____________________________________________


2  By separate order entered the same date, the trial court involuntarily
terminated the parental rights of S.A.T. (“Mother”) with respect to Child
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). Mother neither
filed a separate appeal nor is a party to the instant appeal.

3 Mother’s older son and Child’s half-brother, K.J.M., Jr., was also a subject of
the termination proceedings in question. He is, however, not a subject of the
instant appeal.


                                           -2-
J-S35043-17


     however he did not get along with the assigned counselor, and his
     anger issues appeared to worsen at this time. By May of 2015,
     Father was being escorted out of multiple visits because of his
     temper, and he was moved from merely supervised visitation to
     therapeutic visitation with the child.
           Father’s progress at this point, however, seemed to turn
     around.    Father was heavily involved with therapist Alexis
     Jacomen of King and Associates over this time period, as she was
     his supervised visitation specialist beginning in July of 2015. Ms.
     Jacomen testified that Father made substantial progress in this
     time, and was compliant with her directives. Father seemed
     excited to parent K.L.M. while being compliant with all ordered
     services, including anger management through a different
     provider. Ms. Jacomen found Father consistently attentive and
     engaged with regard to the child; he appeared to be set on the
     path to reunification, and the Permanency Review Orders
     throughout this time period are reflective of the same.
            Due to Father’s progress, a trial home visit was scheduled
     with the child and the child’s half-sibling, beginning on February
     5, 2016. During the pendency of the trial home visit, Father began
     to display worrisome behaviors including asking the caseworker
     to bring him essential supplies such as food and diapers. During
     the visit, which lasted less than two weeks, Father also asked the
     foster mother to babysit the children as they had become
     overwhelming for him. According to testimony from Ms. Jacomen,
     it quickly became apparent that Father was unable to successfully
     parent the children on his own due to these and similar concerns,
     however the trial home visit was brought to an even quicker end
     because of criminal allegations against Father that surfaced at this
     time. It was alleged that Father had inappropriate sexual relations
     with a thirteen-year-old. Father was eventually determined to be
     an indicated perpetrator of this abuse. K.L.M. and his half-sibling
     were removed from Father’s care on February 13, 2016, due to
     these allegations.
            At this point, Father was moved back to supervised
     visitation with Ms. Jacomen. She describes Father’s parenting
     from February through May as being on a severe downhill slide.
     She states that Father cancelled a number of the visits and when
     he did appear, he would be distant from the child, sometimes
     staying on his phone via Bluetooth for the duration of the visit.
     Ms. Jacomen would attempt to redirect Father to focus on the
     child, however he would continue to discuss his pending criminal
     case, often while becoming agitated and using inappropriate

                                    -3-
J-S35043-17


       language in front of the child. Ms. Jacomen testified that Father
       was behaving in a completely opposite manner compared to his
       parenting before the trial home visit, and that no amount of
       redirection was successful. Father’s sudden shift in attitude
       toward K.L.M. was confusing and distressing to the child, even
       bringing him to the point of tears. The caseworker testified that
       Father’s anger issues are presently back to the same level as when
       the case was initially opened for service.
              Father’s criminal involvement regarding the February 2016
       allegations is detailed at Docket Number [ ]. Father is currently
       charged with statutory sexual assault with a victim over age
       eleven, involuntary deviate sexual intercourse with a person less
       than sixteen years of age, criminal solicitation of child
       pornography, child pornography, corruption of minors, contact or
       communication with a minor constituting sexual abuse, criminal
       use of a communication facility, and indecent assault of a person
       less than sixteen years of age. All charges have been waived for
       trial, and all charges, excepting the last, are felony charges.
       Father was incarcerated in the Westmoreland County Prison on
       May 27, 2016, where he presently remains, awaiting trial.[4]
              Testimony was given by Corrections Counselor, Derek
       Enciso, who has worked with Father at the prison throughout his
       incarceration. Mr. Enciso works with Father during his time in
       disciplinary segregation, which he described as an inmate being
       removed from the general prison population as a punishment for
       disciplinary infractions.   He described Father’s behaviors as
       excessively violent and defiant, even when compared to other
       individuals in the prison population.       Mr. Enciso described
       numerous instances of Father’s disobedient and sometimes
       aberrant behaviors placing him in disciplinary segregation for
       weeks at a time, accounting for a large portion of Father’s total
       time in prison up to the point of the January 5, 2017, hearing.
              Father’s first infraction occurred on June 9, 2016, not even
       two weeks into his incarceration.         On this occasion, Father
       physically resisted movement, refused to obey the corrections
       officer, and created a disturbance by destroying security
       equipment, leading to twenty (20) days of disciplinary
       segregation. On July 19, 2016, Father received thirty (30) days
       of disciplinary segregation for creating a disturbance and
____________________________________________


4As reflected by the criminal docket, all charges were held for court on August
16, 2016. See Agency Exhibit 2.

                                           -4-
J-S35043-17


     disrupting normal operations by disobeying lawful written orders.
     On September 13, 2016, Father received disciplinary segregation
     for an incident which involved an assault with possession of a
     deadly weapon; specifically, Father placed sharpened pencils
     between his fingers in a closed fist and wrapped his hand with torn
     bed sheets to secure the pencils in a porcupine-like manner,
     before repeatedly punching another inmate. On November 14,
     2016, Father resisted physical movement, disrespected
     corrections staff, and threatened them with bodily harm. Within
     the same incident, Father threw bodily fluids and human fecal
     matter at others. He received a total of sixty (60) days of
     disciplinary segregation for this incident, continuing through the
     time of the January 5, 2017, hearing.
            Owing to the above disciplinary infractions, Father has been
     placed in disciplinary segregation for a large part of his time in the
     Westmoreland County Prison. When a prisoner is subject to
     disciplinary segregation, he or she is unable to have any parent-
     child visitation, and he or she is limited in participation in
     educational programs.        Father’s disciplinary segregation has
     prevented Father from participating in a parenting program in
     which he initially enrolled, and it has prevented him from any
     visitation with the minor child. Alexis Jacomen testified that, at
     least once per month since the beginning of Father’s incarceration,
     she contacted the prison to set up visitation with Father and
     K.L.M., but each time she was informed that Father was in
     disciplinary segregation and was not able to visit with the child.
     For this reason, Father has had no contact with K.L.M. since May
     20, 2016. Father has not even attempted to send K.L.M. any
     letters, cards, or gifts since that time.
           K.L.M. is currently thriving in his foster home.         The
     caseworker, Colleen Flynn, reported that because he was placed
     in foster care at five (5) months of age, K.L.M. never had any
     issues adjusting. She states that he is consistently happy and
     pleasant-tempered child, and that he is very attached to both his
     foster parents and his foster siblings. She stated that he does not
     speak about or inquire of Father. The Court Appointed Special
     Advocate noted that when the child was asked to bring in a family
     photo for school show-and-tell, the child proudly presented a




                                     -5-
J-S35043-17


       picture of his foster family, stating to the teacher “all of these
       people are in my family, and they all love me.”[5]

Trial Court Opinion (“T.C.O.”), 3/7/17, at 2-5 (footnotes added).

       On August 5, 2016, the Agency filed petitions seeking to involuntarily

terminate parental rights.         The trial court conducted a hearing on the

termination petitions on January 5, 2017.             In support thereof, the Agency

presented the testimony of the following:                Derek Enciso, 6 corrections

counselor, Westmoreland County Prison; Alexis Jacomen, therapist and

supervised     visitation   specialist,    King   &    Associates;   Amber   Gordon,

permanency specialist, Project Star;7 Colleen Flynn, Agency caseworker; and

Mary Koziara, the Court Appointed Special Advocate (“CASA”). Father, who

was represented by counsel, did not present any evidence on his behalf. 8


____________________________________________


5Upon review of the Notes of Testimony, it appears that the CASA was actually
referring to Child’s half-brother, and not Child, with regard to this statement.
Notes of Testimony (“N.T.”), 1/5/17, at 121-22; see also Judicial Exhibit 1 at
3.

6 Mr. Enciso is improperly identified as Derek Encisco in the Notes of
Testimony.

7Ms. Gordon’s testimony was relevant to Mother and the termination of
Mother’s parental rights.

8 It is unclear whether Father was present, participated via telephone from
prison, or neither, at the January 5, 2017, hearing. We observe that, while
the trial court discusses the lack of Father’s former counsel’s filing a transport
order, counsel appears to consult with Father during the proceeding. N.T.,
1/5/17, at 4-5, 131.




                                           -6-
J-S35043-17


Mother, present and also represented by counsel, testified on her own behalf.

Child was represented by a guardian ad litem, Doreen N. Petonic, Esquire,

during the proceedings.

       Following the hearing, on January 6, 2017, the trial court entered an

order involuntarily terminating the parental rights of Father pursuant to 23

Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).9      On February 6, 2017, Father,

through counsel, filed a notice of appeal, along with a concise statement of

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

and (b).10, 11

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

       I.     Whether the trial court erred in finding by clear and
              convincing evidence that the [Agency] met its burden,
              under 23 [Pa.C.S.A. § 2511(b)], that the best interest of the
              Child is met by terminating Father’s parental rights?
       II.    Whether the trial court erred by not appointing counsel for
              the Child pursuant to 23 [Pa.C.S.A. § 2313(a)]?

Father’s Brief at 4.



____________________________________________


9 This order memorialized the decision placed by the court on the record at
the conclusion of the hearing. N.T. at 147-50.

10 While the notice of appeal should have generally been filed no later than
February 4, 2017, February 4th fell on a Saturday. Hence, the notice of appeal
was timely filed on Monday, February 6, 2017. See Pa.R.A.P. 903(a) (notice
of appeal shall be filed within thirty days after the entry of the order from
which the appeal is taken); 1 Pa.C.S.A. § 1908 (computation of time).

11 Subsequent to the filing of a notice of appeal and concise statement of
errors complained of on appeal, new counsel was appointed for Father.

                                           -7-
J-S35043-17


      Initially, we address Father’s second issue with regard to the

appointment of counsel for Child pursuant to 23 Pa.C.S.A. § 2313(a). Father

argues that the instant matter should be remanded to the trial court to appoint

counsel for Child and conduct a new termination proceeding. Father’s Brief at

8. Both the Agency and guardian ad litem suggest waiver of this issue for

Father’s failure to raise it before the trial court and/or failure to raise it in his

concise statement of errors complained of on appeal. Agency’s Brief at 14-

15; Guardian ad litem’s Brief at 7-8. While we do not find waiver, we find that

Father’s claim lacks merit.

      As to the appointment of counsel to represent a child in involuntary

termination proceedings, 23 Pa.C.S.A. § 2313(a) provides:

      § 2313. Representation.

      (a)    Child.--The court shall appoint counsel to represent the child
             in an involuntary termination proceeding when the
             proceeding is being contested by one or both of the parents.
             The court may appoint counsel or a guardian ad litem to
             represent any child who has not reached the age of 18 years
             and is subject to any other proceeding under this part
             whenever it is in the best interests of the child. No attorney
             or law firm shall represent both the child and the adopting
             parent or parents.


      Our Supreme Court, in In re Adoption of L.B.M., 639 Pa. 428, 441-

42, 161 A.3d 172, 180 (2017) (plurality), held that Section 2313(a) requires

that counsel be appointed to represent the legal interests of any child involved

in a contested involuntary termination proceeding. The Court defined a child’s

legal interests as synonymous with his or her preferred outcome and distinct


                                        -8-
J-S35043-17


from a child’s best interests, which must be determined by a court. Id. at

432, 161 A.3d at 174-75. In In re Adoption of L.B.M., four justices agreed

that a guardian ad litem who is an attorney may act as counsel pursuant to

Section 2313(a) so long as the dual roles do not create a conflict between the

child’s best interest and legal interest. Id. at 447-62, 161 A.3d at 183-93.

      Recently, in In re T.S., ___ A.3d___, 2018 WL 4001825 (Pa. filed Aug.

22, 2018), our Supreme Court re-affirmed this legal principle, and, in so doing,

acknowledged that this Court had on multiple occasions recognized the

majority view expressed in In re Adoption of L.B.M. See In re T.S., supra

at *6 (citing D.L.B., 166 A.3d 322 (Pa.Super. 2017) and In re Adoption of

T.M.L.M., 184 A.3d 585, 588 (Pa.Super. 2018)). Critically, in In re T.S., in

finding that the trial court did not err in allowing the children’s guardian ad

litem to act as their sole representative during the termination proceeding,

the Supreme Court noted that, at two and three years old, the children were

incapable   of   expressing   their   preferred   outcome   of   the   termination

proceeding. In re T.S., supra. Thus, the Supreme Court held that a conflict

did not exist since the children in question were very young and pre-verbal

such that their preferences were not discernable. Id.

      The Supreme Court reasoned, “As a matter of sound logic, there can be

no conflict between an attorney’s duty to advance a subjective preference on

the child’s part which is incapable of ascertainment, and an attorney’s




                                       -9-
J-S35043-17


concurrent obligation to advocate for the child’s best interests as she

understands them to be.” Id. As such, the Court held:

     [I]f the preferred outcome of the child is incapable of
     ascertainment because the child is very young and pre-verbal,
     there can be no conflict between the child’s legal interests and his
     or her best interests; as such, the mandate of Section 2313(a) of
     the Adoption Act that counsel be appointed ‘to represent the child,’
     23 Pa.C.S.[A.] § 2313(a), is satisfied where the court has
     appointed an attorney-guardian ad litem who represents the
     child’s best interests during such proceedings.

Id. at *10.

     Moreover, the Supreme Court in In re T.S. held that a child’s right to

counsel was not subject to waiver. Id. at *5.

     The statutory right under Section 2313(a) belongs to the child,
     not the parent. Accord In re E.F.H., 751 A.2d 1186, 1189
     (Pa.Super. 2000). There was no attorney representing solely the
     children’s legal interests who could have raised their rights in the
     trial court, and the children plainly could not have done so
     themselves. See In re K.J.H., 180 A.3d 411, 413 (Pa.Super.
     2018) (“Child, due to his minority and lack of representation in
     the orphans’ court, could not raise this issue himself.”); c.f.
     Pa.R.J.C.P. 1152(A)(2) (stating minors can waive counsel in
     dependency cases only if the waiver is knowing, intelligent, and
     voluntary, and the court conducts a record colloquy).              We
     conclude, then, that the failure of any party, . . ., to affirmatively
     request separate counsel for the children cannot have constituted
     waiver.

In re T.S., supra at *5.

     In the case sub judice, Child was represented in the termination

proceeding by the guardian ad litem, who is an attorney that also represented

Child throughout the dependency proceedings. Notably, Child turned three

only one month prior to the termination hearing.       Child had just begun to


                                    - 10 -
J-S35043-17


verbalize words like “apple, bite, dad, and cupcake” in April 2016, only a little

over six months prior. N.T. at 31, 114. Moreover, Colleen Flynn, an Agency

caseworker, noted that, at the time of trial, “[Child] just turned three. He’s

very hard to interview.” Id. at 104-05. As such, it is clear that Child was too

young and unable to express his preferred outcome in this case. Thus, the

court’s appointment of a guardian ad litem satisfied Child’s right to appointed

counsel pursuant to 23 Pa.C.S.A. § 2313(a). 12 In re T.S., supra at *10.

       Next, we turn to Father’s first issue and the termination of his parental

rights.

       In matters involving the 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 trial court if they are supported
       by the record.” In re Adoption of S.P., [616 Pa. 309, 325, 47
       A.3d 817, 826 (2012)]. “If the factual findings are supported,
       appellate courts review to determine if the trial court made an
       error of law or abused its discretion.” Id. “[A] decision may be
       reversed for an abuse of discretion only upon demonstration of
       manifest unreasonableness, partiality, prejudice, bias, or ill-will.”
       Id. The trial court’s decision, however, should not be reversed
       merely because the record would support a different result. Id.
       at [325-26, 47 A.3d at] 827. We have previously emphasized our
       deference to trial courts that often have first-hand observations of
       the parties spanning multiple hearings. See In re R.J.T., [608
       Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)].
____________________________________________


12We note Attorney Petonic participated in the cross-examination of witnesses
throughout the termination hearing and argued and submitted a brief in
support of the termination of Father’s parental rights. See N.T. at 136-38;
Guardian ad litem’s Brief.


                                          - 11 -
J-S35043-17



In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013). “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. & J.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, and 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 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


                                     - 12 -
J-S35043-17


C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter of

Adoption of Charles E.D.M. II, 550 Pa. 595, 601, 708 A.2d 88, 91 (1998)).

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

pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), and (8), as well as (b). We have

long held that, in order to affirm a termination of parental rights, we need only

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

as Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en

banc). Here, Father does not challenge the trial court’s finding of grounds for

termination under Section 2511(a).        We, therefore, analyze the court’s

termination pursuant to Section 2511(b) only, which provides as follows:

      (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(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.” In re K.M., 53 A.3d

                                     - 13 -
J-S35043-17


        781, 791 (Pa.Super. 2012). In In re E.M. [a/k/a E.W.C. &
        L.M. a/k/a L.C., Jr.], [533 Pa. 115, 123, 620 A.2d 481, 485
        (1993)], this 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. In re K.M., 53 A.3d at 791. However, as
        discussed below, evaluation of a child’s bonds is not always an
        easy task.


In re T.S.M., 620 Pa. at 628-29, 71 A.3d at 267. “In cases where there is no

evidence of any bond between the parent and child, it is reasonable to infer

that no bond exists. The extent of any bond analysis, therefore, necessarily

depends on the circumstances of the particular case.” In re K.Z.S., 946 A.2d

753, 762-63 (Pa.Super. 2008) (citation omitted).

        When evaluating a parental bond, “[T]he 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) (internal

citations omitted).

        Moreover,

        While a parent’s emotional bond with his or her child is a major
        aspect of the subsection 2511(b) best-interest analysis, it is
        nonetheless only one of many factors to be considered by the
        court when determining what is in the best interest of the child.
              [I]n addition to a bond examination, the trial court can
              equally emphasize the safety needs of the child, and
              should also consider the intangibles, such as the love,
              comfort, security, and stability the child might have
              with the foster parent. . . .




                                       - 14 -
J-S35043-17


In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011)) (quotation marks and

citations omitted).

         In the case sub judice, in reasoning that termination of Father’s parental

rights favors Child’s needs and welfare under Section 2511(b) of the Adoption

Act, the trial court stated:

                In consideration of 23 Pa.C.S.[A.] § 2511(b), it is clear that
         the developmental, physical and emotional needs and welfare of
         K.L.M. are such that Father’s parental rights should be terminated.
         K.L.M. is currently thriving in his foster care placement, where he
         resides with his half-brother. He refers to his foster parents as
         “mom” and “dad,” and his foster siblings as his brothers and
         sisters. As he has been in placement since he was five months
         old, his foster parents are the only parents he has ever known,
         and he appears consistently happy and loved.
                A consideration of the emotional bond between the minor
         child and the child’s biological parent is necessary in any case
         involving involuntary termination of parental rights. K.L.M. does
         not appear to exhibit any sort of bond or emotional connection
         with Father. He makes no mention of Father even though he has
         not seen him for over nine months. Father has not reached out
         to the child in any way in this time frame. K.L.M. seems
         completely happy and adjusted in his foster family. All of the
         child’s emotional, developmental, and physical needs have been
         met by his foster parents since five (5) months of age. Allowing
         the termination of parental rights to proceed would best serve the
         emotional needs of the child, as it would provide a complete sense
         of permanency for the child with regard to the strong emotional
         bonds he has established with the foster parents. Additionally, it
         would have no adverse effect on the child, as there appears to be
         absolutely no emotional bond between K.L.M. and Father.

T.C.O. at 10-11 (citations omitted).

         Father, however, argues that the Agency failed to meet its burden of

proof.     Father’s Brief at 8.    Specifically, Father contends that a bonding

                                        - 15 -
J-S35043-17


assessment was not conducted.        Id. at 7.    He states, “While a bonding

assessment is not required, the record should not be devoid of substantive

testimony regarding whether a bond exists between Father and Child. This is

especially true in a case where the Father had a trial home visit with the child

[]6[] months prior to the filing of the termination petition.” Id. at 8. We

disagree.

      Upon review, the record supports the trial court’s finding that Child’s

developmental, physical and emotional needs and welfare favor termination

of Father’s parental rights pursuant to Section 2511(b). There was sufficient

evidence to allow the trial court to make a determination of Child’s needs and

welfare, and as to the existence of a bond between Father and Child that, if

severed, would not have a detrimental impact on him.

      At the time of the hearing, Child had been removed from parental care

and in placement for approximately two and one-half years. N.T. at 79-80.

From March through May of 2016, subsequent to Father’s failed trial home

visit, only five of twelve scheduled visits took place, with Father cancelling six

of the seven missed visits.    Id. at 21-22, 49.     Further, Father’s visitation

specialist, Alexis Jacomen, described these visits as devolving into an

“absolute downward spiral.”      Id. at 23.   Father no longer focused on or

engaged Child. Id. at 23, 39, 48. He was distracted and disinterested and




                                     - 16 -
J-S35043-17


often on the phone or talking with other people. He discussed inappropriate

topics and used inappropriate language.13 Id. at 23-33, 94.

       In addition, Father failed to care for, comfort, and console Child, id. at

29-31, 48, and failed to recognize developmental advancements. Id. at 31.

Ms. Jacomen observed a “lack of engagement and just the lack of

acknowledgement” of Child.           Id. at 39.    Father was “unable to focus on

anything at all during the visits outside of himself.”         Id.   Ms. Jacomen

confirmed that the relationship between Father and Child, therefore,

“digressed” and proceeded “downhill,” stating, “[Father] used to pick [Child]

up and hold him and he was very loving. And that changed. It completely

changed.” Id. at 39-40.         She further revealed that Child, who was only still

two years old, began to cry at visits.             When asked why, Ms. Jacomen

explained:

       My opinion would be that when Dad is ignoring him and he has to
       be held and he’s not being held, he, at that time, was, you know
       a two-year-old child who just wanted to be held and comforted.
       It wasn’t happening. And he has no way of understanding that.
       He just knows he doesn’t like it.

Id. at 39-40. Thereafter, Father had no contact with and had not seen Child

since his incarceration on May 27, 2016, due to disciplinary infractions



____________________________________________


13Ms. Jacomen testified to numerous attempts at redirection. Id. at 27-28,
51-52.




                                          - 17 -
J-S35043-17


incurred in prison, which prevented visitation.14, 15 Id. at 34-35, 37, 90-91,

95, 119-20. As a result, Agency caseworker, Colleen Flynn, testified that Child

has not seen Father for an extended period of time and essentially no longer

knows Father. Id. at 99, 103-05. Ms. Flynn, therefore, further opined that

there would be no detriment to Child in terminating Father’s parental rights.

Id. at 99, 103.

        Notably, Ms. Flynn admitted that Father’s behavior during his last visits

with Child suggest issues with parenting, and his disciplinary actions in prison

exhibit that he “still has the same anger problems today the he had in the

beginning.” Id. at 96. Further, the fact that Father is an indicated perpetrator

of sexual abuse presents “a safety hazard.” Id. at 97.

        Moreover, Child is “happy” and “very well-adjusted” in his foster home

where he had been placed with his half-brother for almost two years at the

time of the hearing. Id. at 86, 99, 103-04. As noted by Ms. Flynn, “[H]e’s

happy.     He feels -- they treat him like he’s their own.”       Id. at 99.   She

continued, “He’s always very happy. He’s very attached to not only the foster

parents, but the other kids in the home.”          Id. at 103.   “[I]t’s like he’s a

member of that family.” Id. at 105. To this point, Ms. Flynn indicated that



____________________________________________


14   Father last saw Child on May 20, 2016. Id. at 119-20.

15Ms. Jacomen indicated that she contacted the prison “almost monthly” with
regard to Father’s availability for visitation. Id. at 34.


                                          - 18 -
J-S35043-17


Child refers to his foster parents as “mom” and “dad.” Id. at 104. Similarly,

the CASA report reflects a positive, affectionate relationship between Child

and his foster family. See Judicial Exhibit 1 at 2-3. Thus, as confirmed by

the     record,   termination     of   Father’s    parental   rights   serves   Child’s

developmental, physical and emotional needs and welfare.

        Based on the foregoing analysis of the trial court’s termination of

Father’s parental rights, we, therefore, affirm the order of the trial court. 16

        Order affirmed.

        Judge Ransom did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2018




____________________________________________


16 On November 13, 2017, the Westmoreland County Children’s Bureau filed
an Application for Relief seeking to expedite this matter. In response, this
Court informally notified the parties that the matter was required to be held
internally pending the outcome of In re: K.R., 692 & 693 WDA 2017, J-
E03007.17. Subsequently, as indicated in this Court’s per curiam order filed
on September 24, 2018, during the pendency of In re: K.R., our Supreme
Court filed a precedential opinion in In re: T.S., ___ A.3d ___, 2018 WL
4001825 (Pa. filed Aug. 22, 2018), to which this Court is bound. Thus, we
now formally deny as moot the November 13, 2017, Application for Relief.

                                          - 19 -
