J-S86015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF L.S., A MINOR           :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: C.H., FATHER                    :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 949 WDA 2016

                      Appeal from the Order June 9, 2016
              In the Court of Common Pleas of Allegheny County
          Orphans’ Court Division at No(s): CP-02-AP-0000001-2016


BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED NOVEMBER 23, 2016

        Appellant, C.H. (“Father”), appeals from the June 9, 2016, order

involuntarily terminating his parental rights to his minor child, L.S. (born in

March of 2012), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2),

(5), (6), and (b).1 We affirm.

        The relevant facts and procedural history are as follows:     L.S. was

born in March of 2012 to Mother, who was single and had never been




____________________________________________


1
  Mother signed a consent for adoption as to L.S., and following a hearing,
the trial court confirmed Mother’s consent. Mother is not a party to this
appeal, and she has not filed a separate appeal.

* Former Justice specially assigned to the Superior Court.
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married.2 L.S. was living with maternal grandmother, until he was removed

by the Allegheny County Office of Children, Youth, and Families (“CYF”) on

August 14, 2014.3 At this time, Mother could not be located and Father was

incarcerated at SCI Greene for homicide with 2021 as his earliest release

date.

        On September 3, 2014, L.S. was adjudicated dependent, and due to

lack of contact, the trial court determined aggravated circumstances existed

such that CYF was relieved of its obligation to provide reunification efforts

for Mother. On January 8, 2016, CYF filed a petition for the involuntary

termination of Father’s parental rights as to L.S.,4 and on January 20, 2016,

the goal for L.S. was changed to adoption.

        On June 3, 2016, the trial court held a hearing as to CYF’s petition to

terminate Father’s parental rights. At the hearing, Jessica Andrews, a CYF

caseworker, testified that Father was incarcerated in 2012, and he

completed parenting classes during his incarceration. Id. at 12. In August
____________________________________________


2
  Mother did not list a father on L.S.’s birth certificate; however, she later
informed authorities that Father was L.S.’s biological father. Subsequent
genetic testing in December of 2014 confirmed Father is L.S.’s biological
father.
3
  Mother left L.S. in the care of maternal grandmother in June of 2014 and
then failed to return. Upon investigation, it was discovered that maternal
grandmother and maternal grandfather had extensive criminal histories.
4
  The petition also sought the involuntary termination of Mother’s parental
rights; however, CYF later withdrew its petition when Mother signed the
consent for adoption, which the trial court confirmed.



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of   2015,   L.S.   began   visiting    Father   at    the   prison   in   Waynesburg,

Pennsylvania. N.T., 6/3/16, at 12-13. Caseworkers, including Ms. Andrews,

drove L.S. for the visitations.        Id. at 13.     Ms. Andrews testified that she

witnessed the visitations, and in particular, she testified as follows:

             [L.S.] is very active. He’s a 4-year-old child and he likes
      to run around and play. And during—there is a visiting room and
      stuff and so he likes to be in there. So I try to get him to be out
      in—because [Father] isn’t allowed in the playroom. They don’t
      let inmates in the playroom. So I try to get [L.S.] to stay out in
      the visitation area where he can actually visit with [Father], but
      there is a lot of him just running around and me chasing him to
      try to get him to stay put to visit with [Father] and a lot of me
      trying to, you know, get him to just play with the toys right
      there.

Id. at 13-14.

      As to whether Father is able to redirect or chase L.S. during the visits,

Ms. Andrews testified:

      I don’t know if [Father] is actually allowed to get up and chase
      after him. That, I’m not sure of but I believe that it’s been—the
      interaction seems kind of awkward which would be
      understandable given that it’s my understanding that the first
      time [Father] met [L.S.] was when I took [L.S.] for his first visit
      on August 29th of 2015. So there is a bit of unfamiliarity,
      whereas [L.S.] at that point had known me for over a year and
      [I] had been visiting and seeing him on a regular basis because
      of that. So there are a number of factors I think that play into
      that.

Id. at 14.

      Ms. Andrews testified that, during the visits, Father will hug L.S. and

try to talk to him, but it is difficult because L.S. just wants to play. Id. Ms.




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Andrews testified that, if Father’s parental rights are terminated, there will

be no detriment to L.S. as it relates to a parent-child bond. Id. at 14-15.

      Ms. Andrews testified Father asked that L.S. be placed with paternal

grandmother and, accordingly, in January of 2015, Ms. Andrews went to

paternal   grandmother’s     residence.   However,   upon   inspection   of   the

residence, Ms. Andrews discovered three roommates residing with paternal

grandmother.     One of the roommates was a registered Megan’s Law sex

offender; one of the roommates had been indicated on ChildLine for sex

abuse; and one of the roommates had previously had her parental rights as

to her children terminated due to physical abuse. Id. 17-18. Accordingly,

CYF did not deem paternal grandmother to be suitable for placement

purposes. Id. at 18.

      Thereafter, Father informed CYF that his brother had evicted paternal

grandmother’s roommates, and thus, he asked that CYF reconsider placing

L.S. with paternal grandmother. Id. However, CYF indicated it declined to

do so since paternal grandmother identified one of the roommates as her

paramour and there was “a trust issue.” Id.

      Ms. Andrews testified that L.S. was placed with a foster mom and dad,

and their adult daughter, A.T., moved in with them in February of 2015 to

assist with L.S.’s care.   A.T. indicated she had become attached to L.S. and,

therefore, on December 15, 2015, placement of L.S. was officially granted to




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A.T. with the goal of adoption.5 Id. at 15-16. Ms. Andrews noted that Dr.

Rosenblum had evaluated A.T. and L.S., and he recommended that A.T. be

permitted to adopt L.S. Id. at 16. Moreover, Ms. Andrews testified CYF has

concluded that it would be detrimental to remove L.S. from the care of A.T.

as he has lived with her for close to a year and a half. Id. at 19.

       Ms. Andrews denied that CYF was seeking termination of Father’s

parental rights solely due to his incarceration; but rather, she indicated CYF

was seeking termination as “he’s not capable of providing the care and

control that [L.S.] needs.”        Id.    She opined that termination of Father’s

rights would best meet L.S.’s needs and welfare. Id.

       On cross-examination, Ms. Andrews admitted that Father attempted to

maintain contact with L.S. by sending letters and cards to him. Id. at 24.

She also admitted that Father seemed to want to establish a bond with L.S.;

however, “it was just difficult because there hadn’t been a prior relationship

and trying to build that is difficult with a child that wants to run around.”

Id. at 23.

       Father, who was represented by counsel, testified that, as soon as

paternity testing confirmed that L.S. was his biological child, he requested

visitation through CYF. Id. at 28. He testified that he has done all that he

____________________________________________


5
  The record reveals that L.S. has a half-sibling, A.M.J. The children have
the same biological mother but different biological fathers. Along with L.S.,
A.M.J. has also been placed with A.T. with the goal of adoption.



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was supposed to do to begin visitations, and he has had “more than three or

four” visits with L.S. Id. at 27-28. Father testified that “[t]he visits were

nice. I enjoyed them. Because like Ms. Andrews said, he’s very playful and

he’s happy all the time. So I enjoyed all the visits.” Id. at 28. Father noted

he has maintained contact with the caseworker, has completed parenting

classes, has written letters to L.S., and has sent cards to L.S. Id. at 28-29.

      Father indicated that, when he suggested paternal grandmother as a

placement resource, he was unaware that she had other people living in her

home. Id. at 29-30. When he was informed of the fact by CYF, he enlisted

the help of his brother to have the people evicted because he “want[s] [his]

son.” Id. at 30. Father indicated he was contesting the termination of his

parental rights because he does not want to give up his child and it is only

because of his incarceration that his relationship with L.S. is hindered. Id.

at 30. Father testified that he was incarcerated in 2011, and when he was

told that Mother alleged he was the biological father of L.S., he wanted it

confirmed via a paternity test.    Id.   He noted that he “took the test” in

October of 2013, but he had to wait an entire year for the results. Id. at

30-31.

      Father admitted that he is “limited” as to what he can do for L.S. and

“all [he] can do at the time [is] reach out to the family, potential people to

see if they can help.” Id. at 31. Father indicated he loves L.S., and it is the




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only child he has.     Id.    He acknowledged his earliest release date from

prison is 2021. Id. at 32.

      On cross-examination, Father indicated he would concur with the

caseworker’s report that he had seven visits with L.S. Id. He acknowledged

that he knew Mother was pregnant when she testified against him at his

criminal trial, but he did not think the baby was “his baby.” Id. at 32-33.

He admitted that because of his incarceration he is not able to care for L.S.;

however, he wants L.S.’s paternal grandmother to care for L.S. Id. at 33-

34.

      At the conclusion of all testimony, by order entered on June 9, 2016,

the trial court granted CYF’s petition to involuntarily terminate the parental

rights of Father.    Specifically, the trial court determined that CYF met the

grounds for termination under 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).

Father   filed   a   timely   counseled   notice   of   appeal,   as   well   as   a

contemporaneous statement pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

The trial court filed a responsive Pa.R.A.P. 1925(a) opinion.

      Father raises the following issues in his counseled brief:

      1. Is the trial court’s findings of grounds for involuntary
         termination of [Father’s] parental rights under 23 Pa.C.S.[A.]
         § 2511(a)(2), (5), and (8) proven by [a] showing of clear and
         convincing evidence?

      2. Is the trial court’s finding that termination of parental rights
         serves the developmental, physical and emotional needs and
         welfare of the child [ ] proven by clear and convincing
         evidence under 23 Pa.C.S.[A.] § 2511(b)?


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Father’s Brief at 5.6

       Our Supreme Court has set forth the following standards in reviewing

the termination of parental rights.

              [A]ppellate courts must apply an abuse of discretion
       standard when considering a trial court’s determination of a
       petition for termination of parental rights. As in dependency
       cases, our standard of review requires an appellate court to
       accept the findings of fact and credibility determinations of the
       trial court if they are supported by the record. In re R.J.T., 608
       Pa. 9, 9 A.3d 1179, 1190 (2010). If the factual findings are
       supported, appellate courts review to determine if the trial court
       made an error of law or abused its discretion. Id. As has been
       often stated, an abuse of discretion does not result merely
       because the reviewing court might have reached a different
       conclusion. Id. Instead, a decision may be reversed for an
       abuse of discretion only upon demonstration of manifest
       unreasonableness, partiality, prejudice, bias, or ill-will. Id.

             As we discussed in R.J.T., there are clear reasons for
       applying an abuse of discretion standard of review in these
       cases. We observed that, unlike trial courts, appellate courts are
       not equipped to make the fact-specific determinations on a cold
       record, where the trial judges are observing the parties during
       the relevant hearing and often presiding over numerous other
       hearings regarding the child and parents. R.J.T., [608 Pa. at
       28-30], 9 A.3d at 1190. Therefore, even where the facts could
       support an opposite result, as is often the case in dependency
       and termination cases, an appellate court must resist the urge to
       second guess the trial court and impose its own credibility
       determinations and judgment; instead we must defer to the trial
       judges so long as the factual findings are supported by the
       record and the court’s legal conclusions are not the result of an
       error of law or an abuse of discretion. In re Adoption of
       Atencio, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (1994).


____________________________________________


6
  Father has presented no issues regarding the trial court’s order changing
the permanency goal for L.S. to adoption.



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In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012)

(some internal citations omitted).

      The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid.   In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009).

Moreover, we have explained “[t]he standard of clear and convincing

evidence is defined as testimony that is so ‘clear, direct, weighty and

convincing as to enable the trier of fact to come to a clear conviction,

without hesitance, of the truth of the precise facts in issue.’” Id. (quoting

In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super. 2003)).

      In terminating Father’s parental rights, the trial court relied on

Subsections 2511(a)(2), (5), (8), and (b) of the Adoption Act. This Court

may affirm the trial court’s decision regarding the termination of parental

rights with regard to any one Subsection of 2511(a).         See In re B.L.W.,

843 A.2d 380, 384 (Pa.Super. 2004) (en banc). In the case sub judice, we

will focus on Subsections 2511(a)(2) and (b).

      Section 2511 provides, in relevant part, as follows:

      § 2511. Grounds for involuntary termination

      (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

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            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.A. § 2511(a)(2), (b).

     We have stated:

            In order to terminate parental rights pursuant to 23
     Pa.C.S.[A.] § 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) (citations

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




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duties.” In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002) (citations

omitted). Further, as our Supreme Court has held:

            [I]ncarceration, while not a litmus test for termination, can
      be determinative of the question of whether a parent is
      incapable of providing “essential parental care, control or
      subsistence” and the length of the remaining confinement can be
      considered as highly relevant to whether “the conditions and
      causes of the incapacity, abuse, neglect or refusal cannot or will
      not be remedied by the parent,” sufficient to provide grounds for
      termination pursuant to 23 Pa.C.S.[A.] § 2511(a)(2). If a court
      finds grounds for termination under subsection (a)(2), a court
      must determine whether termination is in the best interests of
      the child, considering the developmental, physical, and
      emotional needs and welfare of the child pursuant to
      [subsection] 2511(b). In this regard, trial courts must carefully
      review the individual circumstances for every child to determine,
      inter alia, how a parent’s incarceration will factor into an
      assessment of the child’s best interest.

In re Adoption of S.P., 616 Pa. at 332, 47 A.3d at 830-31 (citations and

parentheticals omitted).

      In terminating Father’s parental rights under Subsection 2511(a)(2),

the trial court relevantly found the following:

            Father, who has been imprisoned since 2011, met [L.S.]
      for the first time in August, 2015, when visits with [L.S.] were
      scheduled at SCI Greene. Since then, Father’s only interactions
      with [L.S.] have been occasional visits at SCI Greene [ ] which,
      according to the testimony of the attending CYF caseworker[,]
      are “awkward” due to the “unfamiliarity” between [L.S. and
      Father]. Father has never provided [L.S.] with daily parental
      care and supervision, and Father’s “repeated and continued
      incapacity” has “caused the child to be without essential parental
      care, control or subsistence necessary for his physical or mental
      well-being.” See 23 Pa.C.S.A. § 2511(a)(2).

            [The trial court] concluded, furthermore, that the
      conditions which led to the removal of [L.S.] continue to exist
      and could not be remedied, within a reasonable period of time,

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      given the length of time remaining before Father’s earliest
      possible release date in 2021, at which time [L.S.]—who was
      over three years old when he first met Father, and who [ ] has
      never resided with Father or interacted with Father except for
      periodic visits at SCI Greene—will be nine to ten years old.
      Accordingly, [the trial court] concluded that Father has not in the
      past, and will not within a reasonable time, be able to provide for
      the child’s needs[.]

Trial Court Opinion, dated 8/8/16, at 6-7.

      After a thorough review of the record, we conclude the trial court did

not abuse its discretion by concluding CYF met its burden of proving

termination of Father’s parental rights was warranted, by clear and

convincing evidence, under Subsection 2511(a)(2).       In re R.N.J., supra.

The evidence clearly demonstrates that Father is incapable of providing L.S.

with parental care, control, or subsistence necessary for his physical or

mental well-being.    While Father may claim to love L.S., a parent's own

feelings of love and affection for a child, alone, will not preclude termination

of parental rights. In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010).       We

have stated that a child's life “simply cannot be put on hold” in the hope that

a parent will somehow summon the ability to handle the responsibilities of

parenting. Id. Rather, “a parent's basic constitutional right to the custody

and rearing of his child is converted, upon the failure to fulfill his or her

parental duties, to the child's right to have proper parenting and fulfillment

of his or her potential in a permanent, healthy, safe environment.” In re B.,

N.M., 856 A.2d 847, 856 (Pa.Super. 2004).




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      After we determine that the requirements of Subsection 2511(a) are

satisfied, we proceed to review whether the requirements of Subsection

2511(b) are satisfied.    See In re C.L.G., 956 A.2d 999, 1009 (Pa.Super.

2008) (en banc).      This Court has explained that the focus in terminating

parental rights under Subsection 2511(a) is on the parent, but, under

Subsection 2511(b), the focus is on the child. Id. at 1008.

      In reviewing the evidence in support of termination under Subsection

2511(b), our Supreme Court recently stated as follows.

      [I]f the grounds for termination under subsection (a) are met, a
      court “shall give primary consideration to the developmental,
      physical and emotional needs and welfare of the child.” 23
      Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the
      child have been properly interpreted to include “[i]ntangibles
      such as love, comfort, security, and stability.” [The court] [has]
      held that the determination of the child's “needs and welfare”
      requires consideration of the emotional bonds between the
      parent and child. The “utmost attention” should be paid to
      discerning the effect on the child of permanently severing the
      parental bond.

In re T.S.M., 620 Pa. 602, 628-29, 71 A.3d 251, 267 (2013) (quotation and

citations omitted).

      As to the bond analysis, we have stated that, in conducting a bonding

analysis, the court is not required to use expert testimony, but may rely on

the testimony of social workers and caseworkers. In re Z.P., supra. This

Court has observed that no bond worth preserving is formed between a child

and a natural parent where the child has been in foster care for most of the




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child's life, and the resulting bond with the natural parent is attenuated. In

re K.Z.S., 946 A.2d 753, 764 (Pa.Super. 2008).

      In concluding termination of Father’s parental rights was in L.S.’s best

interest under Subsection 2511(b), the trial court relevantly found the

following:

             [The court], in terminating Father’s parental rights,
      considered the developmental, physical and emotional needs of
      [L.S.] pursuant to 23 Pa.C.S.A. § 2511(b), and determined that
      termination was warranted in light of [L.S.’s] lack of any
      relationship with Father from birth until August of 2015, and
      [L.S.’s] limited relationship with Father thereafter, together with
      the fact that Father has been imprisoned since 2011, and will not
      be able to provide for [L.S.’s] daily needs, at least until his
      earliest possible release date in 2021. In addition, evidence and
      testimony presented at the hearing indicated that [L.S.]
      displayed a “very strong emotional connection” to his pre-
      adoptive mother, referring to her as “Mommy,” and that [L.S.]
      “respond[s] very well to her.” (See Ex. 2 Expert Report of Dr.
      Rosenblum, 7/31/15). Moreover, CYF presented evidence and
      testimony that she has “earned the child’s love and trust,” is
      “attached” to him, is eager to assume parental responsibility,
      and has the ability to effectively provide for [L.S.’s] needs.

Trial Court Opinion, dated 8/8/16, at 7-8.

      Further, the trial court recognized that it would not be in L.S.’s best

interest to reside with paternal grandmother, as suggested by Father, in

light of the criminal history of paternal grandmother’s roommates, as well as

the fact L.S. has never met paternal grandmother. Id. at 8. The trial court

concluded that “given the length of time that [L.S.] has resided with [pre-

adoptive mother], with whom [L.S.] has formed a bond, it would be

detrimental to remove him from [her] care.” Id. at 9.


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      After a thorough review of the record, we conclude the trial court did

not abuse its discretion in terminating Father’s parental rights under

Subsection 2511(b). While Father argues that CYF did not meet its burden

since the evidence was insufficient to establish a lack of a parental bond

between him and L.S., we disagree.       Ms. Andrews, the CYF caseworker,

testified that, if Father’s parental rights are terminated, there will be no

detriment to L.S. as it relates to a parent-child bond. N.T., 6/3/16, at 14-

15.   Moreover, Father admitted that he visited with L.S. a total of seven

times during L.S.’s lifetime, and all of these visits occurred at the prison.

Accordingly, we reject Father’s claim.

      For all of the foregoing reasons, we affirm the trial court’s June 9,

2016, order terminating Father’s parental rights as to L.S. on the basis of

Subsections 2511(a)(2) and (b) of the Adoption Act.

      Affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2016




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