J-S56016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: Y.-S.H.A.S.-             :   IN THE SUPERIOR COURT OF
    D., A MINOR                                  :        PENNSYLVANIA
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                                                 :
                                                 :
                                                 :
    APPEAL OF: H.A.S., FATHER                    :   No. 1317 EDA 2017

                     Appeal from the Decree March 23, 2017
              In the Court of Common Pleas of Philadelphia County
                  Family Court at No: CP-51-DP-0001222-2015

BEFORE:      BOWES, STABILE, and PLATT*, JJ.

MEMORANDUM BY STABILE, J.:                             FILED SEPTEMBER 18, 2017

        H.A.S. (“Father”) appeals from the decree entered March 23, 2017, in

the Court of Common Pleas of Philadelphia County, which involuntarily

terminated his parental rights to his minor son, Y.-S.H.A.S.-D. (“Child”),

born in January 2015.1 After careful review, we affirm.

        The record reveals that the Philadelphia Department of Human

Services (“DHS”) filed an application for order of protective custody with

respect to Child on May 6, 2015.               In its application, DHS averred that it

received a report regarding Mother in February 2015, alleging that she
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The trial court entered a separate decree that same day, involuntarily
terminating the parental rights of Child’s mother, S.D. (“Mother”). Mother
did not file a brief in connection with this appeal, nor did she file her own
separate appeal.
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tested positive for methadone and opiates at the time of Child’s birth.

Application for Order of Protective Custody, 5/6/15, at 1 (unpaginated).

DHS averred that it received an additional report regarding Mother on May

2, 2015, alleging that she continued to suffer from drug abuse issues, and

that she was failing to supervise Child and his sibling.         Id.   DHS further

averred that Father was not available to care for Child at that time, because

he was incarcerated.        Id.   The application for order of protective custody

was granted, and Child was placed in the custody of DHS. Child remained in

DHS custody pursuant to a shelter care order entered May 8, 2015, and the

trial court adjudicated Child dependent on May 18, 2015.

       On November 10, 2016, DHS filed a petition to involuntarily terminate

Father’s parental rights to Child.         The trial court conducted a termination

hearing on March 23, 2017.            Following the hearing, the court entered a

decree terminating Father’s parental rights.2 Father timely filed a notice of

appeal on April 18, 2017, along with a concise statement of errors

complained of on appeal.

       Father now raises the following issues for our review.

       1. Whether the Trial Court erred by terminating the parental
       rights of [Father] under 23 Pa.C.S.A. § 2511(a)(1)?

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2
 Father filed a motion for reconsideration of the decree on March 29, 2017.
However, Father filed the motion at Child’s dependency docket number only,
and not at Child’s termination docket number. The trial court took no action
on Father’s motion.



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       2. Whether the Trial Court erred by terminating the parental
       rights of [Father] under 23 Pa.C.S.A. § 2511(a)(2)?

       3. Whether the Trial Court erred by terminating the parental
       rights of [Father] under 23 Pa.C.S.A. § 2511(b)?

Father’s Brief at 5 (suggested answers and trial court answers omitted).3

       We address these issues mindful of our well-settled standard of

review.

       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

____________________________________________


3
  In his notice of appeal, Father indicated that he also wished to appeal the
order entered March 23, 2017, changing Child’s permanency goal to
adoption. However, Father did not include any claim regarding the goal
change order in his concise statement. In addition, Father did not include
any such claim in his statement of questions involved, or in the argument
section of his brief. Accordingly, we conclude that Father waived any
challenge to the goal change order, and we focus solely on the decree
terminating his parental rights. See Krebs v. United Refining Co. of Pa.,
893 A.2d 776, 797 (Pa. Super. 2006) (“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, and any issue not raised in a statement of
matters complained of on appeal is deemed waived.”) (citations omitted); 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., 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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      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.A. §§ 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).

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

pursuant to Section 2511(a)(1), (2), and (b). We need only agree with the

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

2511(b), in order to affirm. 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

analyze the court’s decision to terminate under Section 2511(a)(1) and (b),

which provides as follows.




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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), (b).

      To meet the requirements of 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)). The court must then consider “the parent’s explanation for

his or her conduct” and “the post-abandonment contact between parent and




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child” before moving on to analyze Section 2511(b).         Id.   (quoting In re

Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998)).

      This Court has explained that a parent does not perform his or her

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

of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal

denied, 872 A.2d 1200 (Pa. 2005) (quoting In re C.M.S., 832 A.2d 457, 462

(Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004)).                Rather,

“[p]arental 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 or her ability, even in difficult

circumstances.”   Id.   (citation omitted).    Critically, incarceration does not

relieve a parent of the obligation to perform parental duties.                    An

incarcerated   parent   must   “utilize   available   resources   to   continue    a

relationship” with his or her child. In re Adoption of S.P., 47 A.3d 817,

828 (Pa. 2012) (discussing In re Adoption of McCray, 331 A.2d 652 (Pa.

1975)).

      Instantly, Father argues that the trial court erred by terminating his

parental rights, because he did not receive any communication from the

Community Umbrella Agency (“CUA”) prior to the filing of the termination

petition on November 10, 2016. Father’s Brief at 12. Father argues that he

did not know how to contact Child from prison, and that CUA never sent him

a copy of his Single Case Plan (“SCP”) objectives. Id.


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      The trial court found that Father refused or failed to perform parental

duties on behalf of Child during the six months immediately preceding the

filing of the termination petition. The court found that Father did not provide

care for Child prior to his incarceration, and that he made no effort to

contact Child in foster care.    Trial Court Opinion, 5/26/17, at 13.       In

addition, the court found that Father did not contact CUA. Id.

      Our review of the record supports the trial court’s findings. During the

termination hearing, the court heard the testimony of CUA case manager,

Bahiyyah Ross.    Ms. Ross testified that she was assigned to this case in

February 2016, and that she contacted Father shortly thereafter by sending

him a letter at SCI Frackville. N.T., 3/23/17, at 32-33. Ms. Ross testified

that she sent multiple letters to Father between February 2016 and

November 2016. Id. at 33. However, Father did not respond until January

2017. Id. at 37. In addition, Ms. Ross was not aware of Father having any

contact with Child after his placement in foster care. Id. at 34. On cross-

examination, Ms. Ross acknowledged that she did not send Father a copy of

his SCP objectives, which were to “make his whereabouts known and to

comply with CUA.” Id. at 34, 38.

      The trial court also heard the testimony of Father. Father testified that

he has been incarcerated at SCI Frackville since January 2016, and that he

has a “possible release date” of September 9, 2017. N.T., 3/23/17, at 41.

Father testified that he did not know how to reach Child while he was


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incarcerated. Id. at 40. Father testified that no social worker contacted him

with instructions on how to reach Child prior to November 2016, and that he

did not receive the February 2016 letter from Ms. Ross. Id. at 40-41.

      Thus, the record confirms that Father refused or failed to perform

parental duties during the six months immediately preceding the filing of the

termination petition. It was within the trial court’s discretion to accept the

testimony of Ms. Ross, and to conclude that Father made no effort to contact

CUA or Child during the relevant six months. While Father testified that he

did not receive the February 2016 letter sent by Ms. Ross, and that he did

not know how to contact Child, the court was free to reject this testimony as

incredible. In addition, while Ms. Ross acknowledged that she did not send

Father a copy of his SCP objectives, it is clear that this does not excuse

Father’s complete failure to take an interest in Child’s life. We discern no

abuse of discretion.

      We next consider whether the trial court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(b). We have

discussed our analysis under Section 2511(b) as follows.

      Section 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. As this Court has
      explained, Section 2511(b) does not explicitly require a bonding
      analysis and the term ‘bond’ is not defined in the Adoption Act.
      Case law, however, provides that analysis of the emotional bond,
      if any, between parent and child is a factor to be considered as
      part of our analysis. 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

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      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)) (quotation marks and

citations omitted).

      Here, Father argues that the trial court erred because he deserves a

chance to be a part of Child’s life. Father’s Brief at 15. Father argues that,

now that he is “aware of the social worker,” he can send letters to Child and

speak with him over the phone. Id.

      The trial court concluded that terminating Father’s parental rights

would best serve Child’s needs and welfare. The court found that Child has

no bond with Father, and that Child looks to his foster parent for safety and

comfort, and to meet his daily needs. Trial Court Opinion, 5/26/17, at 14-

15. The court further found that terminating Father’s parental rights would

not cause Child to suffer irreparable harm. Id. at 15.

      We again discern no abuse of discretion. Ms. Ross testified that Father

was incarcerated at the time Child was removed from Mother’s care in May

2015. N.T., 3/23/17, at 32. In addition, as discussed above, she was not

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aware of Father having any contact with Child since that time.     Id. at 34.

Ms. Ross did not believe that Child has any bond with Father, or that Child

would suffer irreparable harm if Father’s parental rights were terminated.

Id. at 35.    Ms. Ross confirmed that a pre-adoptive resource has been

identified for Child, and that the resource’s home is “in the process of being

certified[.]” Id. at 16.

      Thus, the record confirms that Child has no bond with Father. Indeed,

Child has no relationship with Father at all, as he was placed in foster care

when he was only a few months old, and has had no contact with Father

since that time.   It was within the trial court’s discretion to conclude that

Child’s life should not be put on hold any longer, and that his needs and

welfare would best be served by terminating Father’s parental rights,

thereby freeing him for adoption.

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

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

Therefore, we affirm the court’s March 23, 2017 decree.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017

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