J. S10044/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: N.R., A MINOR :           IN THE SUPERIOR COURT OF
                                  :                 PENNSYLVANIA
                                  :
APPEAL OF: J.S., NATURAL FATHER   :                No. 1829 MDA 2019


             Appeal from the Decree Entered October 22, 2019,
              in the Court of Common Pleas of Franklin County
               Orphans’ Court Division at No. 61 ADOPT 2019


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED APRIL 01, 2020

      J.S. (“Father”) appeals from the October 22, 2019 decree entered in the

Court of Common Pleas of Franklin County, Orphans’ Court Division,

involuntarily terminating his parental rights to his dependent male child, born

in June 2018 (the “Child”), pursuant to the Adoption Act, 23 Pa.C.S.A.

§§ 2511(a)(1), (2), and (b).1 We affirm.

      The orphans’ court set forth the following factual findings:

            [In June] 2018, [Franklin County Children & Youth
            Service (the “Agency”)] received a referral concerning
            [the Child,] a newborn[,] who was in the Newborn
            Intensive Care Unit (NICU) at the Chambersburg
            Hospital; the referral relayed concerns regarding
            [M]other’s ability to provide the [C]hild with basic
            care. The following day, the Agency conducted a
            hospital visit to determine whether Mother would be
            able to care for [the Child] upon discharge. Mother
            related Father was incarcerated at the Franklin County

1 We note that on the same date, the orphans’ court entered a decree that
terminated the parental rights of the Child’s natural mother, I.R. (“Mother”).
Mother is not a party to this appeal.
J. S10044/20


          Jail[Footnote 2] and was facing deportation, leaving
          her without sufficient family supports.

               [Footnote 2] The record reveals the
               following        concerning        Father’s
               incarceration[:] On February 6, 2018,
               Father was charged by the Chambersburg
               Police Department with two third degree
               felonies—Dissemination       of   Sexually
               Explicit Materials to a Minor and Unlawful
               Contact with a Minor—as well as felony
               counts of Identify Theft and Theft by
               Unlawful Taking—Movable Property. As a
               result, Father was incarcerated at the
               Franklin County Jail on February 6. He
               subsequently      pled   guilty   to   the
               Dissemination charge and entered a plea
               of nolo contendere on the Identity Theft
               charge.

               The February 2018[] charges were not
               Father’s first run-in with the law. In July
               2014, he was charged with Simple Assault
               and     was     placed    on    Accelerated
               Rehabilitative      Disposition     (ARD).
               However, Father later violated the
               conditions of ARD, and his participation in
               ARD was revoked as a result. In April
               2015, Father was charged with Theft by
               Deception—False Impression, to which he
               later pled guilty.

          [When the Child] was discharged from Chambersburg
          Hospital [eight days after his birth,] the [orphans’
          c]ourt immediately entered an Order for Emergency
          Protective Custody; [the Child] was placed in the
          temporary physical and legal custody of the Agency,
          as [the orphans’ court] determined that allowing [the
          Child] to remain in the home would be contrary to his
          welfare, given Mother’s issues with mental health and
          substance abuse, as well as her overall parenting
          ability.




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          That same day, a caseworker for the Agency visited
          Father at the Franklin County Jail and advised him of
          [the Child’s] placement with the Agency. Until that
          meeting, Father was unaware [the Child] had been
          born. On June 19, 2018, the Agency attempted to
          contact Father again, but was advised Father had
          been transferred out of the Franklin County Jail the
          previous day. At the time of the Adjudication and
          Disposition Hearing, which occurred on June 28, 2018,
          the Agency was without knowledge of Father’s
          location.

          In July 2018, the Agency became aware Father had
          been transferred to York County prison where he was
          in Immigration and Customs Enforcement (ICE)
          custody awaiting deportation. Because [the Child]
          was declared dependent, Father was ordered to
          establish and maintain consistent contact with [the
          Child] and the Agency if Father wished to be
          considered a resource for [the Child].[Footnote 3]

                [Footnote 3] Had Father been released
                from custody at any point during this
                process, the Agency indicated further
                evaluation would be necessary to
                determine    whether    any   additional
                parenting service was needed.

          Hannah Crean, a caseworker with the Agency who was
          assigned to [the Child’s] case, testified at the hearing
          to Father’s contacts with the Agency. She stated
          Father sent many letters to the Agency, but had never
          sent any letters or other correspondence directed to
          [the Child].[Footnote 4] In his letters to the Agency,
          Father focused primarily on his request that his
          mother, Ms. [S.], be considered a resource for [the
          Child]. The letters generally did not inquire into [the
          Child’s] well-being, though he did express a desire to
          be there for [the Child] and make sure [the Child] was
          being cared for.

                [Footnote 4] Ms. Crean testified that
                Father has in fact been provided with the



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               foster agency’s information, including its
               mailing address.

          With respect to Father’s request that his mother[,
          Ms. S.,] be awarded custody of [the Child], Ms. Crean
          testified that the Agency made efforts to determine
          whether the request was tenable. Specifically, the
          Agency conducted an Interstate Compact on the
          Placement      of   Children   (ICPC)     study    on
          Ms. [S.][Footnote 5]

               [Footnote 5] This is legally required
               before approving placement outside of
               Pennsylvania, and Ms. [S.] lives in North
               Carolina.

          The study was denied, however, as Ms. [S.] failed to
          provide the necessary information requested of her.
          In particular, Ms. [S.] was residing with another
          individual who the Agency attempted to collect
          information on for the purpose of completing
          background checks; information on this individual was
          not provided.[Footnote 6] Further, Ms. [S.] has never
          met [the Child].

               [Footnote 6] The Agency communicated
               with      Ms. [S.]     through      written
               correspondence.         While    Ms. Crean
               conceded the correspondence was in
               English although Ms. [S.] only speaks
               Haitian Creole, Ms. [S.] was able to
               respond to the letter indicating she was
               willing to be a resource for [the Child].

          While Father was at the York County prison, the
          Agency made several attempts to contact him and set
          up phone conferences both for court purposes and to
          update him on [the Child’s] status. Those attempts
          were all unsuccessful, though there is no allegation
          this was due to Father’s refusal to cooperate.

          In May 2019, Father was relocated to the Clinton
          County correctional facility where he remains to this
          day.    While he finished serving his criminal


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            incarceration, he continues to be held in ICE custody
            awaiting      deportation,    and,     according     to
            representations by authorities at Clinton Correctional,
            will not be released from prison. Because Father has
            been incarcerated since [the Child’s] birth, Father has
            never met [the Child]; as such, Ms. Crean testified
            she has “no reason to believe there is a bond or
            attachment” between the two.

            On the other hand, Ms. Crean stated [the Child] has
            been with his foster parents for fifteen months, and
            they are willing to be a permanent resource for him;
            in her opinion, [the Child’s] foster parents are meeting
            “all of his needs, welfare, and emotional needs.”

Orphans’ court opinion, 11/25/19 at 2-6 (record citations omitted).

      At the conclusion of the hearing, the orphans’ court entered the order

involuntarily terminating Father’s parental rights to the Child. Father filed a

timely notice of appeal, together with a concise statement of errors

complained of on appeal in compliance with Pa.R.A.P. 1925(a)(2)(i).

Thereafter, the orphans’ court filed its Rule 1925(a)(2)(ii) opinion.

      Father raises the following issue for our review:

            Did the [orphans’ c]ourt err in summarily
            [t]erminating [Father’s] parental rights when limited
            effort was engaged in by the Agency possessing [the
            Child], to unite the [C]hild with [Father’s m]other so
            to keep the familial bond in place, pending [Father’s]
            availability and where [Father] was not offered
            counsel until after a filing to terminate his rights
            occurred?

Father’s brief at 6.

      At the outset, we note that Father raised the following “reason for his

appeal” in his Rule 1925(a)(2)(i) statement:



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            Failure of preventative agencies to meet burdens of
            25 Pa.C.S.[A. §] 2511(a)(2), (a)(5), (a)(8), by [the]
            fact that an agency did not exercise diligent efforts to
            facilitate [Father’s] requests to maintain his parental
            relationship via placement of the [C]hild with his
            mother.

Father’s Rule 1925(a)(2)(i) concise statement, 11/6/19.

      In his appellate brief, Father contends that he “was not appointed an

attorney at the time of the [A]gency’s intervention in the case, but only after

[the Agency] filed a petition to terminate his rights.” (Father’s brief at 9.)

Even if Father preserved this claim with the orphans’ court by including it in

his concise statement as required by Pa.R.A.P. 1925(b)(4)(vii), the issue

would not properly be before us. Father appeals the termination order on the

adoption docket.   Father did not take an appeal from a final order on the

dependency docket.       Consequently, claims of error arising from the

dependency proceeding are not properly before us.

      We further note that the issue raised in Father’s concise statement is

not entirely consistent with the issue raised in his brief. Nevertheless, we

conclude that the issue Father raises for our review is fairly suggested in his

concise statement; specifically, that the orphans’ court erred in terminating

his parental rights because the Agency only made a limited effort to place the

Child with Father’s mother, Ms. S.

      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, the focus is on
            the conduct of the parent.        The party seeking
            termination must prove by clear and convincing


                                     -7-
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            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).

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

Sections 2511(a)(1), (2), and (b). Father, however, advances no claim that

the orphans’ court erred or abused its discretion in terminating his parental

rights under any of those sections. Rather, Father contends that the orphans’

court erred in terminating his parental rights because the Agency engaged in

limited efforts to unite the Child with Father’s mother, Ms. S. It is well settled

that neither Section 2511(a)(2) nor (b) requires an orphans’ court to consider

the reasonable efforts provided to a parent prior to terminating parental

rights. In re D.C.D., 105 A.3d 662, 672 (Pa. 2014); see also In re C.K.,



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165 A.3d 935, 944 (Pa.Super. 2017) (“parental rights may be terminated even

if the agency fails to make reasonable efforts to reunify the family”);

In re B.L.W., 843 A.2d 380, 384 n.1 (Pa.Super. 2004) (en banc) (“the

adequacy of [the agency’s] efforts towards reunification is not a valid

consideration at the termination of parental rights stage, as the law allows

[the agency] to ‘give up on the parent’” (citation and internal brackets

omitted).)   Clearly, then, neither Section 2511(a)(2) nor (b) requires the

orphans’ court to consider the reasonable efforts to unite the Child with

Father’s mother prior to terminating Father’s parental rights.2 Nevertheless,

we will proceed to review the orphan court’s termination order.

       We have long held that, in order to affirm a termination of parental

rights, we need only agree with the orphans’ court as to any one subsection

of Section 2511(a), as well as Section 2511(b). In re B.L.W., 843 A.2d at

384.    We will, therefore, analyze the orphans’ court’s termination order

pursuant to Subsections 2511(a)(2) and (b), which provide as follows:

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

                   ....

                   (2)    The   repeated     and    continued
                          incapacity, abuse, neglect or refusal

2 We note that the record reflects that the Agency did make efforts to
determine whether Ms. S. was a viable resource. The inquiry ended, however,
when Ms. S. failed to provide the Agency with information that it requested
which was necessary to the determination. (Notes of testimony, 10/22/19
at 11.)


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                        of the parent has caused the child
                        to be without essential parental
                        care,    control   or   subsistence
                        necessary for his physical or mental
                        well-being and the conditions and
                        causes of the incapacity, abuse,
                        neglect or refusal cannot or will not
                        be remedied by the parent.

                 ....

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

23 Pa.C.S.A. § 2511(a)(2), (b).

     We first address whether the orphans’ court abused its discretion by

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

           To terminate parental rights under section
           2511(a)(2), the moving party must produce clear and
           convincing evidence of the following elements:
           “(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).


                                    - 10 -
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            ....

            The Pennsylvania Supreme Court has instructed 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.] § 2511(a)(2). See [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
                   remedied despite mother’s compliance
                   with various prison programs).

            Accordingly,     courts     properly      consider   the
            incapacitating effect of a parent’s incarceration and
            whether the duration of that incarceration would
            prevent a parent from remedying the incapacity. See
            id.; see also In re D.C.D., 629 Pa. 325, 105 A.3d
            662, 677 (2014) (holding that trial court properly
            concluded that father's incarceration rendered him
            “incapable of providing care for his child and that [his]
            incapacity will exist at least until [f]ather’s minimum
            release date [four years later], when [c]hild will be
            seven”).

In re Adoption of:        A.C., 162 A.3d 1123, 1131-1132 (Pa.Super. 2017)

(brackets in original).



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      Here, the record reflects that at the time of the Child’s birth, Father was

incarcerated and was not aware that the Child had been born.            When the

Agency   filed   the   termination   petition,   Father   remained   incarcerated.

Moreover, at the time of the termination hearing, which was 15 months after

the Child’s birth, Father was still incarcerated and was awaiting deportation.

Indeed, Father testified that he did not know when he would be an available

resource for the Child. (Notes of testimony, 10/22/19 at 50-51.) The record

further reflects that Father was required to establish consistent contact with

the Child, which he failed to do.      Therefore, we conclude that the record

supports the orphans’ court’s factual findings and that the orphans’ court did

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

Section 2511(a)(2). The record demonstrates that the conditions that existed

upon removal establish repeated and continued incapacity, abuse, neglect, or

refusal of Father that caused the Child to be without essential parental care,

control, or subsistence necessary for his physical or mental well-being. The

record also supports the orphans’ court’s conclusion that Father continued to

lack capacity to parent the Child.

      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 such as


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             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 1108, 1121 (Pa.Super. 2010) (internal

citations omitted).

        Moreover,

             [w]hile 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,


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                  comfort, security, and stability the child
                  might have with the foster parent. . . .

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).

      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., 71 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.

      Here, in terminating Father’s parental rights under Section 2511(b), the

orphans’ court found that:

            [Father] has never met [the Child]. While he may
            have love and concern for the [C]hild, [the orphans’
            court] cannot find that a parent/child bond exists.
            [Father] has never provided for the [C]hild’s physical,
            emotional, [and] moral well[-]being or welfare, and is
            in no position to do so in the foreseeable future.

            On the other hand, the [C]hild is in a foster family
            where his needs are met. The foster family has
            offered themselves as a permanency resource. It is
            in the [C]hild’s best interest to move the [C]hild
            forward toward permanency.



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Decree, 10/22/19 at 4.

         Our review of the record supports this determination, and the orphans’

court did not abuse its discretion in terminating Father’s parental rights to the

Child.

         Accordingly, we find no abuse of discretion and conclude that the

orphans’ court appropriately terminated Father’s parental rights to the Child

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

         Decree affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/01/2020




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