J-S39016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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




APPEAL OF: D.A., FATHER

                                                      No. 167 EDA 2015


                   Appeal from the Decree December 12, 2014
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-AP-00-00390-2013
                            CP-51-DP-0001071-2012
                            FID: 51-FN-001570-2012


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                              FILED AUGUST 21, 2015

       D.A. (“Father”) appeals from the decree entered December 12, 2014,

in the Court of Common Pleas of Philadelphia County, which involuntarily

terminated his parental rights to his minor daughter, A.A.A. (“Child”), born

in November of 2010.1 We affirm.

       The trial court summarized the relevant factual history as follows.

       In April, 2012, mother, [Mother,] left the child, [Child], on the
       porch of the home of [J.L.], [C]hild’s paternal aunt.

       On June 13, 2012, [J.L.] contacted the Department of Human
       Services (DHS) stating that she had been caring for [Child] since
____________________________________________


1
  Child’s mother, J.H. (“Mother”), voluntarily relinquished her parental rights
to Child during a permanency review hearing on July 10, 2014. Mother is
not a party to the instant appeal.
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       April, 2012[,] but did not have legal custody or medical
       insurance for the child.

       On June 19, 2012, DHS obtained an Order of Protective Custody
       (OPC). The child, [Child],[]remained in the custody and care of
       [J.L.].

       A shelter care hearing was held on June 21, 2012[,] before the
       Honorable Edward C. Wright. Judge Wright ordered that the
       child be temporarily committed to DHS.

       On June 28, 2012, an adjudicatory hearing was held before the
       Honorable Jonathan Q. Irvine.       [Child] was adjudicated
       dependent and committed to DHS.

       On December 12, 2012[,] DHS held a Family Service Plan (FSP)
       meeting. [FSP] objective[s] were issued for the parents. The
       father did not participate in the FSP meeting.[2]

       On or about January 14, 2013[,] DHS learned from [J.L.] that
       she was no longer able to care for [Child].

       On January 16, 2013[,] DHS arranged for [Child] to be placed
       with [A.M.], [C]hild’s maternal cousin.  Child’s sibling had
       previously been placed with [A.M.].

       On January 29, 2013[,] DHS obtained an OPC for [Child] and
       placed her in kinship care with [A.M.].

       A shelter care hearing was held on January 31, 2013[,] before
       the Honorable Jonathan Q. Irvine. Judge Irvine ordered [Child]
       to be committed to DHS.

       On May 15, 2013[,] an FSP meeting was held. FSP objectives
       were set for the parents. The father did not participate in the
       meeting. The father’s FSP objectives were: 1) [F]ather will
       maintain contact with the child and 2) [F]ather will communicate
       with DHS.

____________________________________________


2
  As discussed in greater detail, infra, the caseworker testified Father was
incarcerated at SCI Cresson.



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Trial Court Opinion, 3/3/2015, at 1-2 (unpaginated).

       On July 2, 2013, DHS filed a petition to terminate Father’s parental

rights to Child involuntarily. A termination hearing was held on December

12, 2014, during which the trial court heard the testimony of DHS social

worker, Bessie Lee; and Bethana social worker, Messia Hill.           The court

entered its decree terminating Father’s parental rights that same day.

Father timely filed a notice of appeal on January 8, 2015, along with a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).

       Father now raises the following issues for our review.

       1. Whether the [t]rial [c]ourt erred by terminating the parental
       rights of Appellant, Father, under 23 Pa.C.S.A § 2511[](a)(1),
       (a)(2), (a)(5) and § 2511(a)(8)?

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

Father’s brief at 5 (trial court answers omitted).3
____________________________________________


3
  Father also appears to challenge the order entered December 12, 2014,
which changed Child’s permanency goal to adoption. Father’s brief at 4, 15.
However, Father has waived any challenge to the change of goal order by
failing to include this claim in his statement of questions involved. See
Krebs v. United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006)
(citing Pa.R.A.P. 2116(a)) (“We will not ordinarily consider any issue if it has
not been set forth in or suggested by an appellate brief's statement of
questions involved . . . .”). Additionally, Father’s brief does not contain any
citation to, or discussion of, the relevant provisions of the Juvenile Act, or of
any other pertinent authority. See In re W.H., 25 A.3d 330, 339 n.3 (Pa.
Super. 2011), appeal denied, 24 A.3d 364 (Pa. 2011) (quoting In re A.C.,
(Footnote Continued Next Page)


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      We review this appeal according to the following standard:

      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. 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 Section 2511 of the

Adoption Act, which requires a bifurcated analysis:

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating
      parental rights. Initially, the focus is on the conduct of the
      parent. The party seeking termination must prove by clear and
      convincing evidence that the parent’s conduct satisfies the
      statutory grounds for termination delineated in Section 2511(a).
      Only if the court determines that the parent’s conduct warrants
      termination of his or her parental rights does the court engage in
      the second part of the analysis pursuant to Section 2511(b):
      determination of the needs and welfare of the child under the
      standard of best interests of the child. One major aspect of the
      needs and welfare analysis concerns the nature and status of the
                       _______________________
(Footnote Continued)

991 A.2d 884, 897 (Pa. Super. 2010)) (“‘[W]here 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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       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) (citing 23 Pa.C.S.A.

§ 2511). The burden is on 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).

       Instantly, the trial court terminated Father’s parental rights pursuant

to Section 2511(a)(1), (2), (5), (8), and (b).     This Court need only agree

with any one subsection of 23 Pa.C.S.A. § 2511(a), in addition to Section

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), appeal denied, 863 A.2d

1141 (Pa. 2004). Here, we conclude that the trial court properly terminated

Father’s parental rights pursuant to Sections 2511(a)(1) and (b), which

provide as follows:4


____________________________________________


4
  We note that the trial court concluded inappropriately that Father’s
parental rights could be terminated under Sections 2511(a)(5) and (a)(8).
Both of these Sections require that the subject child have “been removed
from the care of the parent by the court or under a voluntary agreement
with an agency” in order to be applicable. 23 Pa.C.S.A. § 2511(a)(5),
(8). Because Child was not removed from Father’s care, his parental rights
cannot be terminated under these Sections. See In re C.S., 761 A.2d
1197, 1200 (Pa. Super. 2000) (en banc) (concluding that termination was
inappropriate under Sections 2511(a)(5) and (8) “because the record
reflects that C.S. was never in Appellant’s care and, therefore, could not
(Footnote Continued Next Page)


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      (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.A § 2511(a)(1) and (b).

      With respect to 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

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

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


                       _______________________
(Footnote Continued)

have been removed from his care.”); see also In re Z.P., 994 A.2d 1108,
1123 n.2 (Pa. Super. 2010) (same).



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      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.   (quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa.

1998)).

      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), a

case wherein the Court considered the issue of the termination of parental

rights of incarcerated persons involving abandonment, which is currently

codified at Section 2511(a)(1). The S.P. Court stated:

            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.

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




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

In re Adoption of S.P., supra; see also In re B.,N.M., 856 A.2d 847, 855

(Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005) (internal

citations omitted) (stating that a parent does not perform his or her parental

duties by displaying a “merely passive interest in the development of the

child”).

      With respect to Section 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).

      On appeal, Father argues that DHS failed to prove by clear and

convincing evidence that his parental rights should be terminated.     Father

emphasizes that the DHS and Bethana social workers made little, if any,

effort to contact him.   Father’s brief at 11.   Father further contends that




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there was not sufficient evidence presented to establish that he and Child do

not share a bond. Id. at 15.

       In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court found as

follows:

       It is clear from the record that for a period of six (6) months
       leading up to the filing of the Petition for Involuntary
       Termination, [F]ather failed to perform parental duties for the
       child. . . .

       In the instant case the DHS social worker testified that the father
       failed to complete any of his FSP objectives despite the fact that
       DHS attempted to contact [F]ather on several occasions.
       Specifically, the father failed to maintain communication with his
       child and failed to make himself available to DHS.

                                           ***

       . . . . Furthermore, the DHS social worker testified that the
       father NEVER requested visitation with his child and NEVER
       inquired into the needs of his child while the child was in foster
       care[.] The father has been incarcerated the entire time the
       child has been in foster care.

Trial Court Opinion, 3/3/2015, at 3-4 (unpaginated, citations to the record

omitted). The testimonial evidence supports the court’s findings, as follows.

       DHS social worker, Bessie Lee, testified that she was assigned to

Child’s case in December of 2012.              N.T., 12/12/2014, at 7.   Ms. Lee

determined that Father was incarcerated at SCI Cresson5, and sent Father a

____________________________________________


5
  The record reveals that Father pled guilty to burglary on December 11,
2006, and received a sentence of two and one-half to ten years’
incarceration. DHS Exhibit 2 (Secure Court Summary), at 1. The record
does not indicate the date Father was paroled, however, he was arrested
(Footnote Continued Next Page)


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letter, which was not returned. Id. at 9-10. Ms. Lee also made three phone

calls to SCI Cresson in an effort to contact Father. Id. at 26. However, Ms.

Lee was unable to reach Father’s social worker. Id. at 27. Ms. Lee testified

that Father was later moved to SCI Benner. Id. at 10. Ms. Lee called SCI

Benner to confirm that Father was there, and sent an additional letter. Id.

This letter also was not returned. Id. Ms. Lee was able to reach Father’s

social worker at SCI Benner, but the social worker was unable to set up a

visit between Father and Ms. Lee. Id. at 28. At no point did Father ever

respond to Ms. Lee, nor did Father ever attempt to send Child letters or

cards through Ms. Lee. Id. at 11, 13. Ms. Lee admitted that she did not

personally send Father a copy of his FSP, and that she could not attest

whether or not he actually received a copy of the plan. Id. at 24. However,

she explained that FSPs are mailed by an “FSP processing unit.” Id. at 29,

34. Ms. Lee stated that she submitted FSPs for mailing, and that they were

not returned.6 Id. at 31.

      Bethana social worker, Messia Hill, testified that, to his knowledge,

Father has not called to ask about Child’s needs or “made any outreach” to
                       _______________________
(Footnote Continued)

again on December 25, 2011, on new charges. Id. at 4. Although these
charges were later dismissed on August 13, 2012. Id., it is unclear from the
record why Father was incarcerated as of December 2012.
6
  At the beginning of the termination hearing, DHS entered into evidence
four letters from Ms. Lee to Father. N.T., 12/12/2014, at 4-6. One of the
letters was not dated, but indicated that a hearing would be held on July 17,
2013. DHS Exhibit 8. The remaining letters were dated December 18,
2012, May 15, 2013, and July 9, 2014. DHS Exhibits 4, 5, and 7.



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Child.    Id. at 39.   Mr. Hill stated that his agency sent correspondence to

Father but did not receive a response.         Id. at 42-43.   Mr. Hill conceded,

however, that he did not personally mail a service plan to Father, and did

not otherwise attempt to contact him. Id. at 46-49.

         Thus, the testimonial evidence demonstrates that Father refused or

failed to perform parental duties for a period in excess of six months prior to

the filing of the petition to terminate his parental rights on July 2, 2013.   At

the time of the termination hearing, Child was about four years old, and had

been in foster care since she was about one and a half. Father did not make

any attempt to contact Child during her time in foster care, despite being

sent numerous letters.      Father has not made a good faith effort to maintain

a place of importance in Child’s life.     As such, Father’s conduct warrants

termination pursuant to Section 2511(a)(1).

         Having determined that the trial court properly terminated Father’s

parental rights pursuant to Section 2511(a)(1), we now review the order

pursuant to Section 2511(b). The trial court found as follows:

         . . . . In the instant matter, the testimony established [Child]
         would not suffer any irreparable emotional harm if [Father’s]
         parental rights were terminated.

         The testimony of [the] social worker established [that Child has]
         established a bond with the maternal cousin. The maternal
         cousin is the child’s current caregiver. The maternal cousin
         meets all of the needs of the child. The child is extremely
         bonded with the caregiver, looks to her for love, safety and
         support, and refers to her as “mommy” . . . .




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Trial Court Opinion, 3/3/2015, at 5 (unpaginated, citations to the record

omitted). Again, the testimonial evidence supports the court’s findings.

      Ms. Lee testified that Child currently is in a pre-adoptive foster home.

N.T., 12/12/2014, at 13. Child refers to her foster mother as “mommy,” and

together they share a “parent child bond.” Id. at 14. Ms. Lee was not sure

whether Father had been involved in Child’s care prior to being incarcerated.

Id. at 8-9. However, Father has been incarcerated for at least the last year

and a half of this 4-year-old child’s life.   Ms. Lee testified that Child has

never asked for Father. Id. at 33. Ms. Lee opined that she did not have any

reason to believe that terminating Father’s parental rights would cause Child

irreparable harm. Id. at 14.

      Mr. Hill agreed that Child has a “[g]reat” relationship with her foster

mother, and looks to her foster mother to meet her needs. Id. at 38, 40.

Mr. Hill also testified that Child refers to her foster mother as “mom.” Id.

at 43.   Mr. Hill agreed that Child has never asked for Father, and did not

think that Child would even recognize Father. Id. at 38, 51. Mr. Hill opined

he had no reason to believe that Child would suffer irreparable harm if

Father’s parental rights were terminated, and testified removing Child from

the care of her foster mother would result in “[s]ignificant harm.” Id. at 39.

      Based upon this evidence, we discern no abuse of discretion by the

trial court in terminating Father’s parental rights to Child pursuant to Section

2511(b). The court did not abuse its discretion in concluding       there is no


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evidence of any bond between Child and Father and Child would not suffer

irreparable harm if Father’s rights were terminated.     Moreover, Child is

bonded with her foster mother.

     Accordingly, we affirm the decree involuntarily terminating Father’s

parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1) and (b).

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




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