J-A18040-18


    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

     IN THE INTEREST OF:                       : IN THE SUPERIOR COURT OF
     T.R.G. A/K/A T.G., A MINOR                :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
                                               :
                                               :
     APPEAL OF M.G., FATHER                    : No. 308 EDA 2018


                Appeal from the Decree Entered October 25, 2017
              in the Court of Common Pleas of Philadelphia County
                 Family Court at No(s): CP-51-AP-0000982-2017
                                        CP-51-DP-0002025-2015
                                        FID: 51-FN-001680-2015

BEFORE:       STABILE, J., STEVENS, P.J.E.,* and STRASSBURGER, J.**

MEMORANDUM BY STRASSBURGER, J.:                  FILED SEPTEMBER 11, 2018

        M.G. (Father) appeals nunc pro tunc from the decree entered October

25, 2017 granting the petition of Philadelphia Department of Human Services,

Children and Youth Division (DHS) to terminate involuntarily Father’s parental

rights to his minor child, T.R.G., a/k/a T.G. (Child), born in December 2006.

Father’s notice of appeal also challenges the order changing Child’s

permanency goal to adoption. We affirm.

        The relevant procedural history and facts may be summarized as

follows. Child’s biological parents are Father and V.H. (Mother).1 On July 9,

____________________________________________


1 On October 25, 2017, the family court terminated involuntarily Mother’s
parental rights to Child. Mother appealed, and this Court affirmed.

* Retired Justice specially assigned to the Superior Court.

**Retired Senior Judge assigned to the Superior Court.
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2015, DHS opened services for this family after receiving a general protective

services (GPS) report from St. Christopher’s Hospital for S.D.S., Child’s

maternal half-sibling.2       The next day, DHS visited Mother’s home and

discovered it had a strong odor of urine, was infested with flies, did not have

a working refrigerator or stove, and had a kitchen floor with structural

deficiencies and a possibility of collapse. There was also a high level of lead

in the home. DHS returned four days later and talked to Mother about keeping

a clean and sanitary home and obtaining medical care for S.D.S.          Social

workers returned several times over the next week, but were refused entry

each time.      On July 21, 2015, a social worker returned with police and

removed Child and S.D.S. (collectively, Children) due to deplorable home

conditions and inadequate healthcare. Child was wearing only underwear, and

after being told to get dressed, he returned wearing soiled clothing that

smelled of urine.      DHS requested Child’s asthma inhaler, but Mother was

unable to produce it. DHS obtained protective custody orders for Children

that same day. During this time, Father was incarcerated. N.T., 10/25/2017,

at 79.




____________________________________________


2   S.D.S. is not part of this appeal.




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        After an initial placement in foster care through NorthEast Treatment

Center (NET), Child was placed in kinship foster care with his paternal

grandmother, M.G. (Grandmother), in September 2015.3

        Based on the foregoing, Child was adjudicated dependent in September

2015.     Following Child’s adjudication of dependency, the family court held

several permanency review hearings.              Father was released from prison

sometime in 2016.4 However, at a permanency review hearing in January

2017, the family court found Father’s visitation with Child inadequate, ordered

all of Father’s visits suspended until Father appeared in family court, and

ordered DHS to attempt to locate him. DHS later found Father living at a local

rescue mission. Throughout the dependency proceedings, Father was ordered

to have visits with Child at Grandmother’s home.

        According to DHS, Father was suspected of abusing illegal drugs, was

transient, failed to secure safe and appropriate housing, failed to demonstrate

financial ability to care for Child, failed to maintain consistent and meaningful

visitation or contact with Child, and failed to develop any parent-child

relationship with Child.       Petition for Involuntary Termination of Parental

Rights, 10/5/2017, at Exh. A, ¶¶ z, hh, kk.



____________________________________________


3   S.D.S. was placed elsewhere.

4   N.T., 10/25/2017, at 79.



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       On October 5, 2017, DHS filed a petition to terminate involuntarily the

parental rights to Child of both Father and Mother and to change the

placement goal to adoption. A hearing was held on October 25, 2017. Child

was represented at the hearing by a guardian ad litem and legal counsel.5

Relevant to this appeal, the family court heard testimony from Quaemia

Sanders, CUA case manager, Father, and Grandmother.

       At the time of the hearing, Child had been in foster care for 27 months

and had been living with Grandmother for nearly all of that time. According

to Sanders, Father’s objectives were to comply with NET and recommended

services. N.T., 10/25/2017, at 23. Following his release from prison, Father

was living at a local drug and alcohol recovery program. Id. at 24. Sanders

testified that Father did not have appropriate housing, was not gainfully




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5 We note our displeasure with counsel for Child’s failure to file a brief in this
Court or otherwise advocate for Child’s interests on appeal. Counsel’s duty to
represent a child does not end at the conclusion of the termination of parental
rights hearing. In re Adoption of T.M.L.M., 184 A.3d 585, 590 (Pa. Super.
2018); see also In re M.T., 607 A.2d 271, 276 (Pa. Super. 1992) (observing
that child’s counsel abdicated his legal responsibilities to his client because
counsel, inter alia, failed to file a brief, indicate that he joined another party’s
brief, or otherwise notify this Court of his client’s position). Despite the
foregoing, because this deficiency does not substantially impede our review of
the issues Father has presented herein, we will address the merits. See
Jacobs v. Jacobs, 884 A.2d 301, 305 (Pa. Super. 2005).




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employed,6 had not provided meaningful financial support for Child,7 and had

not been consistent in his visits with Child. Id. at 24-26, 49-50. Further,

Grandmother contacted Sanders in August 2017 to request that supervised

visits between Child and Father occur at a location other than her home,

because Grandmother had obtained a restraining order against Father. Id. at

26-27. When Sanders informed Father of this visitation change, he declined

to continue any visits with Child. Id. Instead, he said he would rather wait

to see Child “once he is on his own.” Id.

       Sanders testified that she sees Child monthly at Grandmother’s home,

but has never observed any visits between Child and Father. Id. at 26-27,

47-48. Child does not ask about Father and expressed to Sanders that he

wants to continue living with Grandmother. Id. at 27-28. Sanders testified

that Child and Grandmother have a “wonderful bond” and he looks to her for

all his needs.      Id. at 48-49.        She stated Child is safe and happy in

Grandmother’s home.         Id. at 29.     Grandmother’s home is supportive and

Sanders testified that there is “nothing but positive interaction” between Child

and Grandmother.        Id. at 22.     Grandmother has attended to all of Child’s

medical and educational needs, including special education services. Id. at



____________________________________________


6 Father sold water on the street in Grandmother’s neighborhood.            N.T.,
10/25/2017, at 25, 40.

7Grandmother testified that Father gave Child a phone a few days before the
hearing and “bought food stamps” a couple times. N.T., 10/25/2017, at 57.

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30-31. Since living with Grandmother, Child is no longer having tantrums at

school, is no longer on medication relating to his behavior, and has the benefit

of an individualized education plan for special education services at school.

Id. at 30, 32-33.    Father has not attended any of Child’s school-related

meetings or activities. Id. at 28. Sanders opined that Child would not suffer

irreparable harm if parental rights were terminated, and believes termination

is in Child’s best interests. Id. at 28-29.

      Additionally, Grandmother confirmed at the hearing that Child has lived

with her for nearly two years, that she has been his primary caregiver, and

that she seeks to adopt him. Id. at 52. She stated she has seen a significant

improvement in Child during his time with her.       Id. at 58.   Grandmother

expressed concern over Child’s behavior when Father appears at her home

because Child (and another grandchild) run upstairs to hide when Father

appears.   Id. at 53-54, 62-63.    She also expressed concern over Father’s

behavior, which resembles bipolar disorder with his mood swings and fits of

anger, and she believes he may be on drugs. Id. at 55-56, 59.

      Next, Father testified against his counsel’s advice. See id. at 76. Father

confirmed he had been incarcerated for terroristic threats, assault, and arson.

Id. at 80. He provided evidence that he had completed recently a drug and

alcohol treatment program, which was a condition of his probation. Id. at 81-

82, Father Exh. 1. Father stated he had just received a settlement for social

security income and would be able to attain housing, but he acknowledged he


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remained without housing as of the hearing date. Id. at 83-84. He stated he

receives mental health treatment and takes daily medications relating to his

mental health. Id. at 47, 88-89. Notably, the family court did not find Father

to be credible. Id. at 94 (stating at the conclusion of the hearing that “…

[Father] presents to [the family court] as someone who has no credibility

whatsoever”); see also Trial Court Opinion (TCO), 3/14/2018, at 21-22.

       At the conclusion of the hearing that day, the family court entered a

decree    terminating     Father’s    parental   rights   pursuant   to   subsections

2511(a)(1), (2) and (b) of the Adoption Act, 23 Pa.C.S. §§ 2101-2938. On

January 16, 2018,8 Father filed a notice of appeal along with a concise

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


____________________________________________


8 While no party has challenged the timeliness of this appeal, we may raise
sua sponte the issue since it goes to our jurisdiction to entertain an appeal.
In re Adoption of W.R., 823 A.2d 1013, 1015 (Pa. Super. 2003). Father
had 30 days, or until November 24, 2017, to file a notice of appeal with this
Court. However, ten days before the expiration of the appeal period, Father’s
counsel was granted permission to withdraw and the family court did not
appoint new counsel for Father until December 11, 2017. From November 14,
2017 until December 11, 2017, Father was without counsel. Father was never
given notice by the court that it had granted his counsel permission to
withdraw; as such, Father could not timely file pro se a notice of appeal or
retain new counsel to file same. Thereafter, Father, through counsel, filed a
petition for reinstatement of appeal nunc pro tunc, which the family court
granted. Based on the foregoing, we find it was within the family court’s
discretion to grant Father nunc pro tunc relief because of a breakdown in the
court operations of the family court. W.R., 823 A.2d at 1015 (holding “a trial
court may grant an appeal nunc pro tunc when a delay in filing an appeal is
caused by … some breakdown in the court’s operation through a default of its
officers”) (citation omitted).



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1925(a)(2)(i) after the family court permitted Father to file an appeal nunc

pro tunc.9 The family court filed its opinion on March 14, 2018.

       Father raises the following issues on appeal:

       1. Did [DHS] sustain the burden that Father’s rights should be
          terminated where there was evidence that Father had
          completed and/or had been actively completing [his]
          permanency goals?

       2. Was there sufficient evidence presented to establish that it was
          in the best interest of [Child] to terminate Father’s parental
          rights?

Father’s Brief at 4 (unnumbered).

       We consider Father’s issues mindful of our 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

____________________________________________


9 Father filed one notice of appeal to challenge both the October 25, 2017
termination decree and the October 25, 2017 permanency review order, and
included the docket numbers for both Child’s dependency and adoption
matters. The correct procedure in this circumstance is to file separate notices
of appeal for each docket. See Pa.R.A.P. 341, Note (“Where … one or more
orders resolves issues arising on more than one docket or relating to more
than one judgment, separate notices of appeal must be filed.”). Our Supreme
Court has held that the failure to file separate notices of appeal from an order
resolving issues on more than one docket “requires the appellate court to
quash the appeal.” Commonwealth v. Walker, ___ A.3d ___, 2018 WL
2448643 at *6 (Pa. filed June 1, 2018). However, this holding applies only
“in future cases.” Id. Thus, because Father filed his notice of appeal prior to
the filing of our Supreme Court’s decision in Walker, we do not quash his
appeal.



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      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.

      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 [subs]ection 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 [subs]ection 2511(b): determination of
      the needs and welfare of the child under the standard of best
      interests of the child….

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

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

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

the court as to any one subsection of 2511(a) in order to affirm. In re B.L.W.,

843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we analyze the family

court’s decision to terminate under subsection 2511(a)(2), which provides 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:

                                      ***



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             (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.

23 Pa.C.S. § 2511(a)(2).

      In order to terminate parental rights pursuant to 23 Pa.C.S.[]
      § 2511(a)(2), the following three elements must be met: (1)
      repeated and continued incapacity, abuse, neglect or refusal; (2)
      such incapacity, abuse, neglect or refusal has 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) (citation

omitted). “The grounds for termination 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.”    In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations

omitted).

      Father contends that he was achieving his single case plan goals and

working toward reunification with Child, and that his only obstacle was lack of

housing.    Father’s Brief at 10 (unnumbered).      However, the family court

concluded there is “clear and convincing evidence that Father failed and

refused to perform parental duties, failed to address the conditions which

brought [Child] into placement, and lacks the capacity to adequately provide



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care and control and a stable environment necessary for this eleven year old

Child.” TCO, 3/14/2018, at 16-17. The family court further found that “Father

cannot provide a permanent, healthy, safe environment for [Child], and

Father’s lack of action demonstrates his inability to care for [Child] now or in

the future.” Id. at 18-19.

      The family court’s conclusions are supported by the record, and we

discern no error or abuse of discretion. The record confirms that Father has

neglected to parent Child, and that Father cannot or will not remedy the

conditions and causes of such neglect in the foreseeable future. There is no

evidence that Father has, at any point during Child’s life, had custody of him

or provided support, nor is there evidence he will be able to act as Child’s

parent within a reasonable time.         Father is transient, lacks safe and

appropriate housing, is not gainfully employed, has not consistently visited

with Child, rejected opportunities to visit with Child when it was not convenient

to him, and does not attend Child’s school or counseling meetings. We have

repeatedly made clear that “a child’s life cannot be held in abeyance while a

parent attempts to attain the maturity necessary to assume parenting

responsibilities. The court cannot and will not subordinate indefinitely a child’s

need for permanence and stability to a parent’s claims of progress and hope

for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.

2006). Accordingly, we conclude there is no merit to Father’s argument that




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the family court erred when it terminated involuntarily Father’s parental rights

under subsection 2511(a)(2).

      Having   concluded   the   statutory    grounds   for   termination   under

subsection 2511(a) were met, we turn our analysis to subsection 2511(b). As

our Supreme Court has explained, “[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’ [as

outlined in 23 Pa.C.S. § 2511(b)].” T.S.M., 71 A.3d at 267. That subsection

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. § 2511(b).

      We have explained the analysis under subsection 2511(b) as follows.

      [Subs]ection 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, [subs]ection 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).

      On appeal, Father argues that the family court should not have

terminated his rights pursuant to subsection 2511(b) because there is

“insufficient evidence to establish that it was in the best interests of [Child] to

be adopted.” Father’s Brief at 12 (unnumbered). According to Father, the

family court “was never presented with enough information to determine

whether there was a bond between [Child and Father].” Id.

      In assessing whether termination best meets Child’s needs and welfare,

the family court relied on “the credible testimony of [Sanders and

Grandmother], who provided tangible and intangible dimensions of the needs

and welfare of [Child].” TCO, 3/14/2018, at 19. The family court also relied

on Sanders’s testimony that Child would not suffer irreparable harm and her

testimony that it would be in Child’s best interest if both parents’ rights were

terminated. Id. at 20. Specifically, the family court noted the testimony of


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Sanders and Grandmother that Child feels safe with Grandmother, is happy

with her, never asks for Father, has lived with Grandmother for two years,

and that Grandmother has attended all of Child’s school meetings and

counseling sessions. Id. After also noting Child’s bond with Grandmother,

the family court concluded termination best served the needs and welfare of

Child. Id.

      The record supports the family court’s determination and we find no

error or abuse of discretion. The unrefuted testimony shows Child is bonded

to Grandmother and is thriving in her home. Further, Child articulated his

preference that he wants to stay with Grandmother. He is safe and happy

with her, has been in a stable family environment with her for two years, and

looks to her for his safety, security, and all of his needs. Removal of Child

from Grandmother’s home would destroy the continuity in his life and almost

certainly undo what he has been able to achieve while living with her, including

marked improvement in behavior and school, receipt of special education

services, and lack of a need for medication.

      Moreover,

      this Court has held that “the [family] court is not required by
      statute or precedent to order a formal bonding evaluation be
      performed by an expert.” In re K.K.R.–S., 958 A.2d 529, 533
      (Pa. Super. 2008). While it may be “wise” to conduct a “bonding
      evaluation” where there is evidence of a bond, in other cases
      “direct observation of the interaction between the parent and the
      child is not necessary and may even be detrimental to the child.”
      In re K.Z.S., 946 A.2d 753, 762–63 (Pa. Super. 2008).
      Furthermore, the [family] court is free to rely upon the


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      assessments of social workers and caseworkers. In re M.A.B.,
      166 A.3d 434, 444 (Pa. Super. 2017).

In re Adoption of J.N.M., 177 A.3d 937, 944–45 (Pa. Super. 2018); see

also K.Z.S., 946 A.2d at 762-63 (“In cases where there is no evidence of any

bond between the parent and child, it is reasonable to infer that no bond

exists.”).

      Sanders testified Child never asks about Father. Whatever relationship

Child may have with Father is attenuated, particularly given Child’s behavior

of running upstairs to hide from Father when he appears at Grandmother’s

home. There is absolutely no evidence to suggest Child is bonded to Father,

such that terminating Father’s parental rights will sever an existing,

necessary, and beneficial relationship or that it will result in irreparable harm

to Child.    Sanders opined that Child would not suffer irreparable harm if

parental rights were terminated, and believes termination is in Child’s best

interests. As such, the bond between Child and Grandmother is the primary

bond to protect. See K.Z.S., 946 A.2d at 764. Thus, we find the family court

correctly determined that termination of Father’s parental rights best serves

the needs and welfare of Child under subsection 2511(b).

      Because evidence of record supports the family court’s decision to

terminate Father’s parental rights, we have no reason to disturb it.

Accordingly, we affirm the decree terminating Father’s parental rights and the

permanency review order changing Child’s permanency goal to adoption.

      Decree affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/18




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