J. S51032/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Y.A., A MINOR        :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                                         :
APPEAL OF: S.A., FATHER                  :         No. 1059 EDA 2018


               Appeal from the Decree Dated March 9, 2018,
           in the Court of Common Pleas of Philadelphia County
          Family Court Division at Nos. CP-51-AP-0000026-2018,
                         CP-51-DP-1000034-2016


BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED SEPTEMBER 07, 2018

     S.A. (“Father”) appeals from the March 9, 2018 decree entered in the

Court of Common Pleas of Philadelphia County, Family Court Division,

involuntarily terminating his parental rights to his dependent child, Y.A.,

male child, born in March of 2014 (“Child”), pursuant to the Adoption Act,

23 Pa.C.S.A. §§ 2511(a)(2) and (b). After careful review, we affirm.

     The trial court set forth the following:

           [Child] and his family have been known to the City of
           Philadelphia Department of Human Services (DHS)
           since June 5, 2015, when DHS received a General
           Protective Services (GPS) report, which alleged that
           [Child], and his Mother, had been residing in the
           Salvation Army shelter, since March 26, 2015 due to
           domestic violence between Mother and Father and
           that Mother was nine months pregnant. The report
           further alleged that Mother had admitted to shelter
           staff that she had been abusing Percocet, taking up
           to ten pills per day. The report also alleged that
           Mother and [Child] had poor hygiene and that
           Mother seemed overwhelmed, as she frequently
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          overslept and struggled to appropriately care for
          [Child] and maintain her room. The report alleged
          that [Child] scored low in fine motor skills and
          personal/social skills on the Ages and Stages
          assessment. This report was determined to be valid.

          On June 17, 2015, DHS received an additional GPS
          report, which alleged that Mother tested positive for
          opiates and Oxycodone at the time of the delivery of
          [Child’s] sibling [Y.], and that he [sic] testified
          positive for methadone. The report further alleged
          that Mother admitted abusing Percocet and that
          Mother was denied in-patient drug and alcohol
          treatment at Gaudenzia as she continued to actively
          abuse drugs. It was reported that Mother had been
          enrolled in Thomas Jefferson University Hospital’s
          methadone maintenance program, but failed to
          attend drug and alcohol treatment as scheduled.
          The report further alleged that Mother failed to
          attend numerous prenatal appointments.         It was
          reported that [Child’s] sibling born at 39 weeks
          gestation, weighed five pounds and 15 ounces, and
          had APGAR scores of 2/4/6. The report further
          alleged that Mother was residing in a shelter due to
          domestic violence concerns, that Mother was
          unemployed, that Mother has a history of abusing
          various opiates including Oxycodone, Suboxone and
          Percocet, as well as marijuana. It was also alleged
          that Mother was not prepared for [Child’s] sibling’s
          birth as she lacked a crib, diapers, and formula. The
          report [was] determined to be valid.

          In the course of DHS investigation of the June 17,
          2015 GPS report, Mother admitted to substance
          abuse issues and agreed to attend a long-term
          residential substance abuse treatment through
          My Sister’s Place.

          On July 24, 2015, DHS implemented In-Home Safety
          Services for [Child], [Child’s] sibling, and Mother, in
          their residence [at] My Sister’s Place, through
          Bethanna’s [C]ommunity Umbrella Agency.




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          On October 29, 2015, Bethanna learned that Mother
          had taken the children and left My Sister’s Place
          against medical advice and without completing the
          program, on or around October 20, 2015.

          The whereabouts of Mother and the children
          remained unknown to Bethanna and DHS until
          November 14, 2015.

          On November 14, 2015, DHS learned that [Child’s]
          sibling died while co-sleeping with Mother [] the
          residence of [Child’s] Grandmother.

          On or around November 18, 2015, Mother and DHS
          agreed that [Child] would reside with his Paternal
          Grandmother pursuant to a safety plan and family
          arrangement.

          On May 9, 2016, DHS received a GPS report, which
          alleged that Mother continued to engage in
          polysubstance abuse, despite attending outpatient
          treatment at Thomas Jefferson University Hospital
          Family Center.      It was reported Father was
          incarcerated. The report was determined to be valid.

          On May 9, 2016, DHS obtained an Order of
          Protective Custody (OPC) for [Child] and placed him
          in a foster home through Delta Community Supports,
          Inc.

          At the May 11, 2016, Shelter Care Hearing, this
          Honorable Court lifted the OPC, ordered temporary
          commitment of [Child] to DHS to stand.

          At the Adjudicatory Hearing held on May 19, 2016,
          this Honorable Court determined that [Child] was a
          dependent child, based on parent’s inability to
          provide him with proper parental care and control,
          committed [Child] to DHS care and custody. The
          Court further ordered that a Single Case Plan
          meeting to be held with in [sic] 20 days with
          objectives to be made for Father; the Court ordered
          CUA was to make outreach to Father and to identify
          a new foster home for [Child].      The Court also


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          ordered that when [Child] was moved the
          whereabouts of the foster home were not to be
          disclosed to Mother.     Maternal and Paternal
          Grandmothers were ruled out as possible resources
          for [Child’s] care.

          On July 12, 2016, a Single Case plan meeting was
          held. Father’s parental objectives were to make his
          whereabouts known to CUA case manager and
          maintain contact to establish service needs and
          discuss the process of the case.

          At the October 4, 2016 Permanency Review Hearing
          held for [Child], Judicial Officer Alexis Cicone ordered
          [Child] to remain committed to DHS.               Father
          remained incarcerated and was found to be
          non-compliance [sic] with his parental objectives.

          At the Permanency Review Hearing held on
          January 5, 2017, the Court found that foster
          placement for [Child] continued to be necessary and
          appropriate.   Father remained in state custody,
          housed at SCI Somerset. The Court ordered CUA to
          continue to outreach to Father and address his
          objectives.

          On June 16, 2017, a Permanency Review Hearing
          was held for [Child] before Honorable Lyris Younge,
          who found that foster placement continued to be
          necessary and appropriate.      At the time of the
          hearing, Father remained incarcerated in state
          custody and had not been involved in [Child’s] daily
          care or prepared to meet [Child’s] daily needs.

          The matter was listed on a regular basis before
          judges of the Philadelphia Court of Common Pleas,
          Family Court Division-Juvenile Branch pursuant to
          section 6351 of the Juvenile Act, 42 Pa.C.S.A. §
          6351, and evaluated for the purpose of reviewing the
          permanency plan of the [C]hild.

          In subsequent hearings, the Dependency Review
          Orders reflect the Court’s review and disposition as a



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            result of evidence presented, primarily with the goal
            of finalizing the permanency plan.

            On March 9, 2018, during the Termination of
            Parental Rights Hearing for Father, the Court found
            by clear and convincing evidence that Father’s
            parental rights, should be terminated pursuant to the
            Juvenile Act Furthermore, the Court held it was in
            the best interest of the [C]hild that the goal be
            changed to Adoption.

Trial court opinion, 5/9/18 at 1-3.

      The record reflects that Father filed a timely notice of appeal and a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The trial court then filed its Rule 1925(a) opinion.

      Father raises the following issues for our review:

            1.     Did the court err in changing the goal to
                   adoption and terminating [Father’s] parental
                   rights under 23 Pa. C.S. § 2511(a)(2) because
                   [DHS] failed to establish by clear and
                   convincing evidence that the conditions and
                   causes of [Child’s] incapacity, abuse, neglect
                   or refusal cannot or will not be remedied by
                   [Father?]

            2.     Did the court err in changing the goal to
                   adoption and terminating [Father’s] parental
                   rights under 23 Pa.C.S. § 2511(b) because the
                   lower court failed to give primary consideration
                   to the development, physical and emotional
                   needs and welfare of the [C]hild insofar as
                   [Child] is bonded to his [F]ather[?]

Father’s brief at 3.

      In matters involving involuntary termination of parental rights, our

standard of review is as follows:



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             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.”
             In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
             2012).     “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.
             “[A] decision may be reversed for an abuse of
             discretion only upon demonstration of manifest
             unreasonableness, partiality, prejudice, bias, or
             ill-will.” Id. The trial court’s decision, however,
             should not be reversed merely because the record
             would support a different result. Id. at 827. We
             have previously emphasized our deference to trial
             courts that often have first-hand observations of the
             parties spanning multiple hearings.       See In re
             R.J.T., 9 A.3d [1179, 1190 (Pa. 2010)].

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).           “The trial court is free to

believe all, part, or none of the evidence presented and is likewise free to

make all credibility determinations and resolve conflicts in the evidence.”

In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f

competent evidence supports the trial court’s findings, we will affirm even if

the record could also support the opposite result.”           In re Adoption

of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).

      The termination of parental rights is guided by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis of the grounds for termination followed by the needs and welfare of

the child.

             Our case law has made clear that under
             Section 2511, the court must engage in a bifurcated
             process prior to terminating parental rights. Initially,


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           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).       We

have defined clear and convincing evidence as that which 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.”

In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting

Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).

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

pursuant   to     Section   2511(a)(2),   as   well   as    Subsection    (b).

Subsections 2511(a)(2) and (b) 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


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                        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 first address whether the trial court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(a)(2).

            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) (citation

omitted).   “The grounds for termination due to parental incapacity that


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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 Adoption of C.D.R., 111 A.3d 1212, 1216

(Pa.Super. 2015), quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super.

2002).    “Parents are required to make diligent efforts towards the

reasonably prompt assumption of full parental responsibilities. . . .    [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.”     In re A.L.D., 797 A.2d at 340 (internal

quotation marks and citations omitted).

     With respect to incarcerated parents, in In re Adoption of S.P., our

supreme court held as follows:

           [W]e now definitively hold that incarceration, 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).       See e.g. Adoption
           of J.J., 511 Pa. 590, 515 A.2d 883, 891 (Pa. 1986)
           (“[A] parent who is incapable of performing parental
           duties is just as parentally unfit as one who refuses
           to perform the duties.”); [In re:] E.A.P., [944 A.2d
           79, 85 (Pa.Super. 2008)] (holding termination under
           § 2511(a)(2) supported by mother’s repeated
           incarcerations and failure to be present for child,
           which caused child to be without essential care and
           subsistence for most of her life and which cannot be


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           remedied despite mother’s compliance with various
           prison programs).       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 § 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., 47 A.3d at 830-831.

     Here, the trial court terminated Father’s parental rights pursuant to

Section 2511(a)(2) finding that:

           the Court has taken testimony by [F]ather and by
           Ms. Ferguson,[1] and actually, I find both to be
           credible.

           But the reality of it is, this [C]hild came into care at
           or around May 2016, and as we sit here, we are
           close to 22 months in which the [C]hild has been in
           care, [and Child] will be four in a week.

           So, the majority of his life, he has been outside of –
           environment where there will be parental care and
           control. And I submit to you that unfortunately,
           [Father] is incarcerated, and it’s limited in what he
           can do to ensure the [C]hild’s safety, to provide a
           nurturing environment for him.

           ....

           I do believe that the Department has met their
           burden of proof, pursuant to 2511(a)(2) in terms of
           the incapacity of [Father]. . . .


1 The record reflects that Ms. Ferguson is Dawn Ferguson, the Bethanna CUA
social worker who was assigned to Child’s case in October 2017. (Notes of
testimony, 3/9/18 at 2, 23.)


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Notes of testimony, 3/9/18 at 59-60.

      In its Rule 1925(a) opinion, the trial court further explained that its

“decision was reflective of testimony of Father’s incarceration and a lack of

ability to provide a safe and nurturing environment for [Child.]” (Trial court

opinion, 5/9/18 at 5.) Indeed, as noted by the trial court and as reflected in

the record, “Father testified he was arrested on January 29, 2015 and was

currently serving [a] five to ten year prison sentence for the crime of

attempted delivery of [a] controlled substance.         Father testified the

minimum date of his release from incarceration was January 2020.”        (Id.

at 4 (citations to notes of testimony omitted).)

      We conclude that the record supports the trial court’s factual findings

and that the trial court did not abuse its discretion in terminating Father’s

parental rights under Section 2511(a)(2) because Father’s incarceration

rendered him incapable of providing “essential parental care, control or

subsistence” and the length of the Father’s remaining confinement prohibit

Father from remedying the conditions and causes of his incapacity to parent.

      We    now    turn   to   whether    termination   was   proper    under

Section 2511(b).    As to that section, our supreme court has 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


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             such as love, comfort, security, and stability.”
             In re K.M., 53 A.3d 781, 791 (Pa.Super. 2012). In
             In re E.M., 620 A.2d [481, 485 (Pa. 1993)], this
             Court 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 K.M., 53 A.3d at 791.
             However, as discussed below, evaluation of a child’s
             bonds is not always an easy task.

In re T.S.M., 71 A.3d at 267. “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,

762-763 (Pa.Super. 2008) (citation omitted).

        When evaluating a parental bond, “the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well.    Additionally, Section 2511(b) does not require a formal bonding

evaluation.” In re Z.P., 994 A.2d at 1121 (internal citations omitted).

        Moreover,

             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



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                  child might have with the foster parent.
                  ...

In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M., 33

A.3d 95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).

      Our supreme court has stated that, “[c]ommon 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., 73 A.3d at 268. The 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, “[c]hildren 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 determining that termination of Father’s parental rights favored

Child’s needs and welfare pursuant to Section 2511(b), the trial court noted

that “the reality of it is that this [C]hild has spent more time in the foster

home that’s pre-adoptive than he has with his biological parents.” (Notes of

testimony, 3/9/18 at 60.)      As further explained by the trial court in its

Rule 1925(a) opinion and as supported by the record, Ms. Ferguson testified

that Child’s foster parents provide for his care and day-to-day needs, that

Child’s relationship with his foster parents is educational for Child, that Child

looks to his foster parents as his caregivers, that Child refers to both of his

foster parents as “mom,” that there would be no harm to Child if Father’s


                                      - 13 -
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parental rights were terminated and Child was freed for adoption, and that it

would be in Child’s best interest to terminate Father’s parental rights and

free Child for adoption. (Trial court opinion, 5/9/18 at 5; see also notes of

testimony, 3/9/18 at 27-30.) Our review of the record supports this

determination, and the trial court did not abuse its discretion in terminating

Father’s parental rights.

        Accordingly, based upon our review of the record, we find no abuse of

discretion and conclude that the trial court appropriately terminated Father’s

parental rights under Sections 2511(a)(2) and (b).

        Decree affirmed.



        Nichols, J. joins this Memorandum.

        Dubow, J. did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 9/7/18




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