J-S15030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ADOPTION OF A.L.M.             :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
 APPEAL OF: J.A.M., FATHER             :
                                       :
                                       :
                                       :
                                       :
                                       :   No. 1754 WDA 2018

            Appeal from the Order Entered November 8, 2018
   In the Court of Common Pleas of Clearfield County Orphans' Court at
                       No(s): OC No. 3482-2018

 IN RE: ADOPTION OF K.A.M.             :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
 APPEAL OF: J.A.M., FATHER             :
                                       :
                                       :
                                       :
                                       :
                                       :   No. 1755 WDA 2018

            Appeal from the Order Entered November 8, 2018
   In the Court of Common Pleas of Clearfield County Orphans' Court at
                      No(s): OC No. 3483 - 2018

 IN RE: ADOPTION OF P.N.M.             :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
 APPEAL OF: J.A.M., FATHER             :
                                       :
                                       :
                                       :
                                       :
                                       :   No. 1756 WDA 2018

            Appeal from the Order Entered November 8, 2018
   In the Court of Common Pleas of Clearfield County Orphans' Court at
                       No(s): OC No. 3481-2018


BEFORE:   GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S15030-19



MEMORANDUM BY SHOGAN, J.:                                FILED JUNE 18, 2019

       J.A.M. (“Father”) appeals from the November 8, 2018 orders in the

Court of Common Pleas of Clearfield County involuntarily terminating his

parental rights to his three daughters, A.L.M., born in August of 2010, P.N.M.,

born in May of 2008, and K.A.M., born in July of 2007 (collectively,

“Children”).1 After careful review, we affirm.

       This appeal arises from the petitions filed by Children’s maternal

grandparents,       J.E.V.    (“Grandfather”)    and   S.L.V.   (“Grandmother”)

(collectively, “Grandparents”), on April 12, 2018, for the involuntary

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

(2), (5), (8), and (b). In their petitions, Grandparents averred their intent to

adopt Children.

       Hearings on the petitions were held on July 31, 2018, and August 29,

2018, during which Courtney L. Kubista, Esquire, represented the legal

interests of Children, who were then ages eleven, ten, and eight, respectively.2

____________________________________________


1 The certified record does not include orders terminating the parental rights
of Children’s mother, J.S.V. (“Mother”). The record includes consents to
adoption executed by Mother and attached as exhibits to the petitions for the
involuntary termination of Father’s parental rights. However, there is no
indication in the record that petitions to confirm the consent to adoption as
required by 23 Pa.C.S. § 2502 (Alternative procedure for relinquishment) have
been filed.

2 Pursuant to 23 Pa.C.S. § 2313(a), a child who is the subject of a contested
involuntary termination proceeding has a statutory right to counsel who



                                           -2-
J-S15030-19


Grandparents      presented      the    testimony   of   the    following   witnesses:

Virginia Johnson, a licensed professional counselor at Cen-Clear Mental Health

Services who provided treatment to Children, presented via telephone;

Grandfather; Loralai Finley, former clinical supervisor at Cen-Clear Mental

Health Services; and Grandmother. Father testified on his own behalf.

       The testimonial evidence revealed that since the birth of his oldest child,

K.A.M., Father has been incarcerated at least five times. N.T., 8/29/18, at

37. Father had a series of probation revocations due to illegal drug use that

resulted in his incarceration for sixty days in 2007, forty-five days in 2008,

thirty days in 2009, and eleven months in 2010.                Id. at 37–38, 44.    In

addition, on November 25, 2011, Father was arrested for the crimes of

endangering the welfare of a child and false imprisonment. Father perpetrated

these crimes against K.A.M., and he pleaded guilty to them. Id. at 16; N.T.,

7/31/18, at 105. Father testified that the crimes involved “[t]ying her up and

blindfolding her.” N.T., 8/29/18, at 16. As part of Father’s sentence, the

court issued a no-contact order against him with respect to K.A.M. Id. at 17.

Father was incarcerated for 438 days, or until February 4, 2013. Id. at 39,

40–42.




____________________________________________


discerns and advocates for the child’s legal interests, which our Supreme Court
has defined as a child’s preferred outcome. See In re T.S., 192 A.3d 1080
(Pa. 2018) (citing In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017)).

                                           -3-
J-S15030-19


      In October of 2013, Father’s probation was revoked because he tested

positive for THC (Tetrohydrocannabinol). N.T., 8/29/18, at 42. Father was

sentenced to a term of incarceration of six months to five years. Id. He was

incarcerated for approximately eight months. Id.

      In November of 2015, Father’s probation was revoked again, and he

was incarcerated for crimes involving possession of methamphetamine,

marijuana, and offensive weapons, all of which were found in his home. N.T.,

8/29/18, at 20, 47.    Father was released from prison in April of 2018,

approximately three months before the commencement of the subject

proceedings, at which time he remained on parole. N.T., 7/31/18, at 101.

      During Father’s periods of incarceration, Grandparents cared for

Children. N.T., 7/31/18, at 112. After each of Father’s releases from prison,

Children returned to his custody. However, K.A.M. never returned to Father’s

custody after his release in February of 2013, as a result of the crimes

committed against her. Id. As such, K.A.M. has consistently resided with

Grandparents since Father’s arrest in November of 2011.      Id. P.N.M. and

A.L.M. have consistently resided with Grandparents since Father’s arrest in

November of 2015. Id.

      On an unspecified date when she was in Father’s custody prior to his re-

incarceration, P.N.M. alleged to Ms. Finley, the former clinical supervisor at

Cen-Clear Mental Health Services, that Father pointed a gun at her head. N.T.,

7/31/18, at 80, 83, 92–93. In December of 2016, Ms. Finley filed a ChildLine


                                    -4-
J-S15030-19


report with respect to the alleged incident.3 Id. at 95. Based on the same

allegation by P.N.M., Grandparents filed a Protection from Abuse (“PFA”)

petition, 23 Pa.C.S. §§ 6101–6122, against Father on behalf of Children and

themselves. Id. at 108. In April of 2017, the court issued a final PFA order

against Father that would expire in three years. Id. at 109.

       Following the evidentiary hearing on the involuntary termination

petitions, the orphans’ court directed all counsel to submit briefs within 30

days of receipt of the transcripts.4 By orders entered November 8, 2018, the

orphans’ court involuntarily terminated Father’s parental rights to Children

pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Father timely filed

notices of appeal and concise statements of errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b),

which this Court consolidated sua sponte. Order, 12/27/18. In lieu of filing

an opinion pursuant to Pa.R.A.P. 1925(a), the orphans’ court relied upon its

opinion that accompanied the involuntary termination orders.

       On appeal, Father presents the following issue for our review:


____________________________________________


3 By letter dated February 8, 2017, the Jefferson County Children and Youth
Services deemed the report indicated and found that P.N.M. was a victim of
abuse by Father. N.T., 7/31/18, at Petitioner’s Exhibit 1.

4  In her letter brief to the orphans’ court, the children’s counsel, Attorney
Kubista, stated that she met with Children extensively about this matter.
Attorney Kubista stated that Children are in agreement with the termination
of Father’s parental rights and that they do not want to see him again.
Likewise, Attorney Kubista has filed a brief in this appeal wherein she argues
in support of the orders involuntarily terminating Father’s parental rights.

                                           -5-
J-S15030-19


      Whether the evidence presented was sufficient for the [orphans’]
      court to rule that [Grandparents] met their burdens of proof by
      clear and convincing evidence to terminate the parental rights of
      [Father] . . . as to [Children] . . .[?]

Father’s Brief at 4.

      We review Father’s issue 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, 23 Pa.C.S. §§ 2101–2938, which requires a bifurcated analysis.

      Initially, the focus is on the conduct of the parent. The party
      seeking termination must prove by clear and convincing evidence
      that the parent’s conduct satisfies the statutory grounds for
      termination delineated in Section 2511(a). Only if the court
      determines that the parent’s conduct warrants termination of his
      or her parental rights does the court engage in the second part of
      the analysis pursuant to Section 2511(b): determination of the
      needs and welfare of the child under the standard of best interests
      of the child. One major aspect of the needs and welfare analysis
      concerns the nature and status of the emotional bond between
      parent and child, with close attention paid to the effect on the child
      of permanently severing any such bond.

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

                                      -6-
J-S15030-19


      Instantly, we conclude that the certified record supports the orders

pursuant to Section 2511(a)(2) and (b), which provide as follows.

      (a) General Rule.--The rights of a parent in regard to a child
      may be terminated after a petition filed on any of the following
      grounds:

                               * * *
         (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.

                                 * * *

      (b) Other considerations.--The court in terminating the rights
      of a parent shall give primary consideration to the developmental,
      physical and emotional needs and welfare of the child. The rights
      of a parent shall not be terminated solely on the basis of
      environmental factors such as inadequate housing, furnishings,
      income, clothing and medical care if found to be beyond the
      control of the parent. With respect to any petition filed pursuant
      to subsection (a)(1), (6) or (8), the court shall not consider any
      efforts by the parent to remedy the conditions described therein
      which are first initiated subsequent to the giving of notice of the
      filing of the petition.

23 Pa.C.S. § 2511(a)(2), (b); see also In re B.L.W., 843 A.2d 380, 384 (Pa.

Super. 2004) (en banc) (stating that we need only agree with the trial court

as to any one subsection of Section 2511(a), as well as Section 2511(b), in

order to affirm).

      This Court has explained that the moving party must produce clear and

convincing evidence with respect to the following elements to terminate

parental rights pursuant to Section 2511(a)(2):


                                     -7-
J-S15030-19


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

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003).

       Pursuant to Section 2511(a)(2), parents are required to make diligent

efforts   toward    the   reasonably   prompt   assumption    of   full   parental

responsibilities.   In re A.L.D., 797 A.2d 326, 340 (Pa. Super. 2002).          A

parent’s vow to cooperate, after a long period of uncooperativeness regarding

the necessity or availability of services, may properly be rejected as untimely

or disingenuous. Id. Further, the grounds for termination of parental rights

under Section 2511(a)(2), 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. Id. at

337.

       In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme Court

addressed the relevance of incarceration in termination decisions under

Section 2511(a)(2). The S.P. Court held that:

       incarceration is a factor, and indeed can be a determinative factor,
       in a court’s conclusion that grounds for termination exist under
       § 2511(a)(2) where the repeated and continued incapacity of a
       parent due to incarceration has caused the child to be without
       essential parental care, control or subsistence and that the causes
       of the incapacity cannot or will not be remedied.

In re Adoption of S.P., 47 A.3d at 828.


                                       -8-
J-S15030-19


      Father argues that he “has remedied or is working to remedy all the

conditions that led to the removal of the Children (those that are within his

power and personal ability).” Father’s Brief at 18. Specifically, Father asserts

that at the time of the hearing, he was employed, enrolled in Narcotics

Anonymous meetings, and he was regularly volunteering for work at a local

church.   Id. at 19.   Father’s claim is without merit.     The orphans’ court

concluded, “Father is unwilling or unable to perform the basic parental duties

that are required for the Children.” Trial Court Opinion, 11/8/18, at 11. We

discern no abuse of discretion.

      Father acknowledged that he has been in prison for the majority of

Children’s lives. N.T., 8/29/18, at 42–43. He testified on cross-examination

by Grandparents’ counsel, “I can’t make up for being gone. I can just make

right for the future and for this to not ever happen again. ... I know what I did

was wrong, I mean, going to jail and being away from them. And it hurt me,

but it hurt them more. And I’m just never going to let that happen again.”

Id. at 43. To that effect, Father testified that he is no longer a drug addict.

Id. at 44.

      Nevertheless, Father testified on cross-examination by Grandparents’

counsel with respect to photographs he posted on Facebook, as follows:

      Q. [D]o you recognize this to be your [F]acebook page?

      A. Yes.

      Q. And the predominant photo in the center of the page appears
      to be a gravestone; is that right?

                                      -9-
J-S15030-19


     A. Yes.

     Q. And what are the plants growing out of the gravestone?

     A. Marijuana.

     Q. And did you post it to your [F]acebook page?

     A. I did.

     Q. And when did you post this to your [F]acebook page?

     A. May 10th.

     Q. Is that this year?

     A. Yes.

     Q. Flip the page, please. Is this also your [F]acebook page?

     A. Yes.

     Q. And are those also marijuana plants?

     A. Yes.

     Q. And did you post that on May 9th of this year?

     A. I did. But it doesn’t mean I was to use drugs.

     Q. It’s not.

     A. It’s just pictures.

     Q. Is marijuana drugs?

           * * *

     A. Yes, it is.

     Q. But you don’t want to use drugs?

     A. I don’t use drugs.


                                  - 10 -
J-S15030-19


      Q. Do you want to use drugs?

      A. I do not want to use drugs. I’m here right now because I’ve
      always used drugs.

            * * *

      Q. Why are you posting [F]acebook photos depicting illegal
      narcotics a month after you were released from prison?

      A. Because I can.

Id. at 45–47. Despite this testimony, Father testified on re-cross examination

that he has, in fact, tested positive for marijuana twice since his parole in

April of 2018. Id. at 54, 58.

      The foregoing testimonial evidence supports the conclusion of the

orphans’ court that Father’s conduct warranted the termination of his parental

rights pursuant to Section 2511(a)(2). Father’s repeated and continued illegal

drug use, which resulted in multiple incarcerations, has caused Children to be

without essential parental care, control or subsistence necessary for their

physical or mental well-being for the majority of their lives.    Further, the

causes of Father’s incapacity and/or refusal cannot or will not be remedied.

      With respect to Section 2511(b), this Court has explained, “Intangibles

such as love, comfort, security, and stability are involved in the inquiry into

the needs and welfare of the child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa.

Super. 2005) (citation omitted). Further, 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. (citation omitted).


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J-S15030-19


However, this Court has stated, “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, 763–

764 (Pa. Super. 2008) (citation omitted).

      Father asserts that Grandparents failed to present competent evidence

regarding the absence or presence of a bond between him and Children.

Father’s Brief at 20–21. He further asserts that he and Children have a strong

family bond. Id. at 20.

      This Court has emphasized:

      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. Additionally, this Court stated that the trial court
         should consider the importance of continuity of
         relationships and whether any existing parent-child bond
         can be severed without detrimental effects on the child.

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)). In addition, our Supreme

Court has stated, “Common sense dictates that courts considering termination

must also consider whether the children are in a pre-adoptive home and

whether they have a bond with their foster parents.” T.S.M., 71 A.3d at 268.


                                    - 12 -
J-S15030-19


Moreover, the T.S.M. Court directed that in weighing the bond considerations

pursuant to Section 2511(b), “courts must keep the ticking clock of childhood

ever in mind.” Id. at 269. The T.S.M. Court observed, “Children are young

for a scant number of years, and we have an obligation to see to their healthy

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

catastrophically maladjusted children.” Id.

        In this case, contrary to Father’s assertion, there is no evidence of a

parent-child bond between him and Children.         Indeed, Father has been

incarcerated on and off for the majority of Children’s lives. Children suffered

physical and emotional trauma when they resided in Father’s custody due to

his actions. N.T., 7/31/18, at 85–86. A no-contact order has been in effect

against Father regarding K.A.M. since he tied her up and blindfolded her in

November of 2011. N.T. 8/29/18, at 16. Further, a PFA order has been in

effect against Father on behalf of Children since April of 2017, based on an

unspecified time when P.N.M. was in his custody, and he pointed a gun to her

head.    K.A.M. has not resided with Father since Father’s incarceration in

November of 2011. P.N.M. and A.L.M. have not resided with Father since his

re-incarceration in November of 2015. The orphans’ court determination that

no parent-child bond exists between Father and Children is supported by the

record. See In re K.Z.S., 946 A.2d at 762–763.

        Virginia Johnson, a licensed professional counselor at Cen-Clear Mental

Health Services, testified that she first provided treatment to Children for


                                     - 13 -
J-S15030-19


issues related to Father approximately two years prior to the hearing. N.T.,

7/31/18, at 11–12, 17–18, 26. Ms. Johnson testified that she continues to

treat P.N.M. for Posttraumatic Stress Disorder (“PTSD”), and that K.A.M. and

A.L.M. receive treatment from different providers. Id. at 10, 11. Ms. Johnson

stated that P.N.M.’s PTSD is due to abuse she suffered from Father. Id. at

10–11.   She further testified that P.N.M. has shown improvement since

residing with Grandparents. Id. at 12–13. However, Ms. Johnson also noted

that P.N.M. started to regress at the end of May or the beginning of June of

2018, which she attributed to Father’s release from prison.       Id. at 15.

Ms. Johnson opined that P.N.M. will continue to regress if Father is re-

introduced into her life. Id. at 15–16.

      Ms. Finley, the former clinical supervisor at Cen-Clear Mental Health

Services, provided treatment to Children, beginning in September of 2016.

N.T., 7/31/18, at 79–80, 87. She testified on direct examination as follows:

      Q. Did you notice any progression or regression during your
      therapy of the children?

      A. When the girls initially started, they were exhibiting a lot of
      behavioral issues. They really started to make progress and make
      improvements. But as the time came closer that they knew their
      father was going to be released [from prison], they started to
      regress again. Very hyperactive, harder to control.

      Q. And did all three girls exhibit that type of behavior?

      A. Mostly [P.N.M.] and [A.L.M.].

      Q. Did K.A.M. exhibit any of the type of behavior?




                                     - 14 -
J-S15030-19


      A. [K.A.M.] . . . was never hard to control. She just shuts down a
      lot.

Id. at 79. Ms. Finley stated that Children are afraid of Father. Id. at 81.

Moreover, she testified:

      Q. In your professional opinion, would you be concerned for all
      three or any children’s well-being if their father was reintroduced
      into their lives?

      A. I would be.

      Q. And do you think that just seeing their father would cause the
      children substantial harm?

      A. Yes.

      Q. Now, in your opinion, during your time treating the children did
      the father provide the care necessary for their physical and mental
      well-being?

      A. No.

      Q. Do you have an opinion as to how the father’s behavior
      impacted these three children?

      A. They exhibit signs of trauma.

                                    * * *

      Q. What type of trauma?

      A. Physical, emotional.

Id. at 85–86.

      Finally, we note that Children’s Counsel avers that K.A.M., then age

eleven, “was adamant on being in agreement with the termination.”

Children’s Brief at 16. Likewise, counsel asserts that P.N.M., then age ten,

“was very clear in that she wanted her Father’s rights terminated.” Id. at 5.

                                    - 15 -
J-S15030-19


Further, Children’s counsel avers that A.L.M., then age eight, “was clear that

she wanted her Father’s rights immediately terminated.” Id. at 6.

      Based upon our careful review of the certified record and witness

testimony, the competent record evidence clearly demonstrates that

involuntarily terminating Father’s parental rights will serve Children’s

developmental, physical, and emotional needs and welfare pursuant to Section

2511(b). Accordingly, we affirm the orders.

      Orders affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2019




                                    - 16 -
