J-S05034-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: Q.A.W., A           :   IN THE SUPERIOR COURT OF
 MINOR                                   :         PENNSYLVANIA
                                         :
                                         :
                                         :
                                         :
                                         :
 APPEAL OF: D.D., NATURAL FATHER         :        No. 1626 MDA 2019

            Appeal from the Decree Entered September 11, 2019
              in the Court of Common Pleas of Luzerne County
                      Orphans’ Court at No(s): A-8768

BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED APRIL 09, 2020

     D.D. (“Father”) appeals from the Decree granting the Petition filed by

the Luzerne County Children and Youth Services (“CYS”) to involuntarily

terminate his parental rights to his biological son, Q.W. (“Child”) (born in

September 2006), with K.A.W. (“Mother”), pursuant to the Adoption Act, 23

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

     In its Opinion pursuant to Pa.R.A.P. 1925(a), the trial court set forth the

factual background and procedural history of this appeal as follows:
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        On September 7, 2018, [CYS] filed Petitions for the Involuntary
        Termination of Parental Rights as to [Child]. After multiple delays,
        the court received evidence on April 25, 2019[,] and on June 21,
        2019. Subsequent to the last hearing, the parties and the
        Guardian Ad Litem [(“GAL”)1] submitted to the Court Findings of
        Facts and Conclusions of Law on or around August 5, 2019. This
        Court then issued [D]ecrees terminating the parental rights of
        Mother and Father on September 9, 2019. Mother voluntarily
        relinquished her parental rights on April 25, 2019.[2] Father’s
        parental rights were terminated pursuant to 23 Pa.C.S.A.
        § 2511(a)(2). In entering the termination [D]ecrees, the [c]ourt
        gave primary consideration to the developmental, physical, and
        emotional needs and welfare of [Child] pursuant to 23 Pa.C.S.A.
        § 2511(b). On October 3, 2019, Father, by and through his
        court[-]appointed counsel, filed a Notice of Appeal to [this]
        Court[,] and the requisite Concise Statement of Matters
        Complained of on Appeal.

Trial Court Opinion, 11/4/19, at 1-2 (footnotes added).

        Following the hearings, the trial court issued the following findings of

fact:

____________________________________________


1 We observe that the trial court appointed Maria Turetsky, Esquire (“Attorney
Turetsky”), to represent Child’s legal interests and to serve as Child’s GAL.
After being ordered to notify the trial court if she believed that there was a
conflict in her representation of Child’s legal interests and Child’s best
interests, Attorney Turetsky filed a written recommendation with the trial
court, stating that the termination of Father’s parental rights is in Child’s best
interests. Trial Court Opinion, 11/4/19, at 14. There does not appear to be
a conflict between the Child’s best interests and legal interests, and none of
the parties challenge Child’s representation by the GAL. See In re D.L.B.,
166 A.3d 322, 329 (Pa. Super. 2017) (stating that “separate representation
would be required only if the child’s best interests and legal interests were
somehow in conflict.”).

2  Mother has not filed a brief in this appeal, nor has she filed an appeal from
the termination of her parental rights to Child. We also note that, by Decree
dated June 21, 2019, the trial court involuntarily terminated the parental
rights of Child’s legal father, F.A.D., pursuant to 23 Pa.C.S.A.
§ 2511(a)(1) and (b). F.A.D. has not filed a brief in this appeal, nor has he
filed an appeal from the termination of his parental rights to Child.

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      There is one minor child in this case, [Child], born [in September
      2006]. This case involves the proposed termination of Father’s
      parental rights.   It is unrebutted that [Child] has been in
      placement in foster care with his sibling [] since December 25,
      2015. The reason for the placement was Mother’s deplorable
      housing conditions and that Mother had an outstanding warrant
      for her arrest. At the time of placement, Father was residing in
      Newark, [New Jersey,] with his wife and her five children. In
      meeting its requisite burden of proof by clear and convincing
      evidence regarding the termination of parental rights of Father,
      [CYS] offered testimony of Gabrielle Stelmak [“Stelmak”],
      caseworker for [CYS]. Father testified on his own behalf.

Id. at 2 (paragraphs combined, citations to record omitted).

      On appeal, Father raises the following issues:

      I. Whether the trial court abused its discretion, committed an error
      of law and/or there was insufficient, [sic] evidentiary support for
      its finding that [Father’s] parental rights should be terminated
      pursuant to 23 Pa.C.S.A. [§] 2511(a)[?]

      II. Whether the trial court abused its discretion, committed an
      error of law and/or there was insufficient evidentiary support for
      its finding pursuant to 23 Pa.C.S.A. [§] 2511(b) that it is in the
      best interest of the minor [C]hild to grant the termination of
      [Father’s] parental rights[?]

Father’s Brief at 3 (unnumbered).

      Father argues that the trial court erred and/or abused its discretion in

terminating his parental rights under section 2511(a)(2) of the Adoption Act.

Id. at 6. Father contends that the trial court erred in finding that he did not

make a significant effort to visit Child during the duration of Child’s

dependency, and that Father always made excuses for his lack of visits with

Child, despite his being offered reimbursement from CYS for his cost of

transportation and hotel stay. Id. Father also argues that the trial court erred


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in finding that he never completed his court-ordered drug and alcohol

treatment. Id. at 6-7. Father asserts that the trial court erred in finding that

he is not capable of providing essential care and control for Child,       and is

unable to meet Child’s needs. Id. at 8.

      In reviewing an appeal from a decree terminating parental rights, we

adhere to the following standard:

             [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. If the factual findings are
      supported, appellate courts review to determine if the trial court
      made an error of law or abused its discretion. As has been often
      stated, an abuse of discretion does not result merely because the
      reviewing court might have reached a different conclusion.
      Instead, a decision may be reversed for an abuse of discretion
      only upon demonstration of manifest unreasonableness, partiality,
      prejudice, bias, or ill-will.

              [U]nlike 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. 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (internal citations

omitted).



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      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)).         This Court may affirm the trial

court’s decision regarding the termination of parental rights with regard to any

one subsection of section 2511(a), along with consideration of section

2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004).

      Here, the trial court terminated Father’s parental rights under section

2511(a)(2) and (b), which provide 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 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.

                                      ***




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      (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. …

23 Pa.C.S.A. § 2511(a)(2), (b).

      To satisfy the requirements of section 2511(a)(2), the moving party

must produce clear and convincing evidence regarding the following elements:

(1) repeated and continued incapacity, abuse, neglect or refusal; (2) such

incapacity, abuse, neglect or refusal 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. See In re Adoption of M.E.P., 825 A.2d 1266, 1272

(Pa. Super. 2003).    The grounds for termination of parental rights under

section 2511(a)(2), 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).

      Based on Stelmak’s testimony, which the trial court found to be credible,

the trial court concluded that CYS had shown, by clear and convincing

evidence, that the parental rights of Father to Child should be terminated

pursuant to 23 Pa.C.S.A. § 2511(a)(2). Trial Court Opinion, 11/4/19, at 2-3.

With regard to section 2511(a)(2), the trial court stated as follows:


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             [Child] has been in placement in foster care with his [half-
      ]sibling, T.K.[,] since December 25, 2015. The reason for the
      placement was Mother’s deplorable housing conditions and that
      Mother had an outstanding warrant for her arrest. At the time of
      placement, Father was residing in Newark, [New Jersey,] with his
      wife and her five children.

                                      ***
            ... Credible testimony was presented to show by clear and
      convincing evidence that Father has refused or was not capable in
      making a diligent effort to assume any parental responsibilities for
      [C]hild and[,] as of the date of the hearing, Father had not
      remedied these issues.

                                     ***

             Unlike 23 Pa.C.S.A. § 2511(a)(1), subsection (a)(2) does
      not emphasize a parent’s refusal or failure to perform parental
      duties, but[,] instead[,] emphasizes the child’s present and future
      need for essential parental care, control or subsistence necessary
      for his physical or mental well-being. Therefore, the language in
      subsection (a)(2) should not be read to compel courts to ignore a
      child’s need for a stable home and ... this is particularly so where
      disruption of the family has already occurred and there is no
      reasonable prospect for reuniting it.

              At this juncture, [Child’s] right to have proper parenting in
      fulfillment of [his] potential in a permanent, healthy, safe
      environment outweighs Father’s interest.

Id. at 2-4, 9 (internal quotations, emphasis, and citations omitted).

      After hearing testimony from Stelmak and Father, the trial court

rejected the testimony of Father as not credible. We conclude that there is

competent evidence in the record that supports the trial court’s findings and

credibility determinations.   We thus discern no abuse of the trial court’s

discretion in finding that Father’s parental rights should be terminated under

section 2511(a)(2). In re Adoption of S.P., 47 A.3d at 826-27.



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      Next, Father argues that the trial court abused its discretion in finding

that termination of Father’s parental rights was in Child’s best interest

pursuant to section 2511(b). Father’s Brief at 9. Father asserts that Stelmak’s

testimony that Father and Child have merely a friend-like bond, rather than a

bond between a parent and child, was incorrect. Id. On the contrary, Father

argues that he and Child actually talk about topics such as going to the park,

movies, and seeing Child’s grandmother, and he claims that he would call

Child twice a week were he not working in his current job. Id. at 9-10.

      We have explained that the focus in terminating parental rights under

section 2511(a) is on the parent, but it is on the child pursuant to section

2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.

2008).   In reviewing the evidence in support of termination under section

2511(b), 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. The emotional needs and welfare of the child have been
      properly interpreted to include [i]ntangibles such as love, comfort,
      security, and stability.     [T]his 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., 71 A.3d 251, 267 (Pa. 2013) (internal citations and quotations

omitted).

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

testimony. Additionally, section 2511(b) does not require a formal bonding

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evaluation.   In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal

citations omitted). Although it is often wise to have a bonding evaluation and

make it part of the certified record, “[t]here are some instances ... where

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 (Pa. Super. 2008).

      This Court has explained that a parent’s own feelings of love and

affection for a child, alone, do not prevent termination of parental rights. In

re Z.P., 994 A.2d at 1121. Further, this Court has stated: “[A] parent’s basic

constitutional right to the custody and rearing of his or her 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 [the child’s] potential in a permanent,

healthy, safe environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super.

2004) (internal citations omitted). It is well-settled that “we will not toll the

well-being and permanency of [a child] indefinitely.”         In re Adoption of

C.L.G., 956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super.

2008) (noting that a child’s life “simply cannot be put on hold in the hope that

[a parent] will summon the ability to handle the responsibilities of

parenting.”)).

      With regards to this claim, the trial court reasoned as follows:

      [CYS] presented credible testimony regarding the needs, welfare
      and best interest of [Child] in relation to [] Father.




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           [Stelmak] testified that [Child] is placed with his [half-
     ]brother, T.K.[,] in a foster home. The home consists of the foster
     mother, her three adult sons and her fourteen[-]year[-]old
     adopted son.

           [Stelmak] testified that [Child] has assimilated into the
     foster home. She testified that she visits the home on a monthly
     basis. The foster mother has photos of [Child] and his brother in
     the home and their school projects displayed in the home. There
     are also toys in the home. [Stelmak] further stated that [Child]
     has a close relationship with his brothers in the residence.

           [Stelmak] testified that the foster mother meets the
     physical needs of [Child]. She provides him with shelter, food and
     clothing. She also meets the developmental needs of [Child].
     [Stelmak] stated that at each of the home visits, the foster mother
     related to her concerns she has about [Child]. The foster mother
     also ensures that [Child] attends his counseling sessions. The
     foster mother also is in constant contact with personnel at
     [Child’s] school. [Stelmak] further testified that the foster mother
     meets the emotional needs of the child. If [Child] is upset[,] then
     she is upset. If [Child] is happy, then she is happy. In addition,
     the foster mother always advocates for [C]hild as to what she
     believes to be in his best interest.

            [Stelmak] described the bond between Father and [Child]
     as a bond between two (2) friends. [Stelmak] testified that there
     had been only four (4) supervised visits between Father and
     [Child] as of the time of the last date of hearings. [Stelmak]
     stated that she did not believe that there is a strong parent/child
     bond between Father and [Child]. She stated that Father only
     called [Child] once per month to speak to him. It was not until
     the first hearing addressing the termination of Father’s parental
     rights that Father began to call [Child] once per week. [Stelmak]
     stated that [Child] is happy in the foster home and wants to be
     adopted by the foster mother. She further indicated that there is
     a strong bond between him and his natural [half-]brother.
     [Stelmak] also indicated that there is a strong bond between
     [Child] and the foster mother. She described the bond between
     [Child] and the foster mother as a parent/child bond.

           [Stelmak] stated that should the [trial court] grant the
     termination of Father’s parental rights, there would not be any
     detrimental effect on [Child], but rather a positive effect. She

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      explained that [Child] would be able to achieve permanency.
      [Stelmak] further explained that the foster mother is aware that
      once she adopts [Child], she would have an obligation to support
      [Child] financially, physically, educationally and emotionally. The
      foster mother further understood that [Child] would be able to
      inherit from her as if he were her natural born child. [Stelmak]
      further testified that [Child] had told her many times that he
      wished to be adopted by the foster mother.

Trial Court Opinion, 11/4/19, at 11-13 (citations to record omitted).

      Based on Stelmak’s testimony, which the trial court found credible, the

trial court concluded that CYS had shown by clear and convincing evidence

that the termination of the parental rights of Father to Child best serves the

needs and welfare of Child pursuant to 23 Pa.C.S.A. § 2511(b). Similarly, we

reject Father’s argument, and agree with the trial court that these friend-like

discussions do not fall within the realm of parental relationship entailed by a

parental bond. After a careful review of the record in this matter, we conclude

that the record supports the trial court’s factual findings and the court’s

conclusions are not the result of an error of law or an abuse of discretion with

regard to section 2511(b). In re Adoption of S.P., 47 A.3d at 826-27.

      There was sufficient, competent evidence in the record for the trial court

to find the grounds for termination of parental rights under section

2511(a)(2), due to parental incapacity that cannot be remedied. There was

also sufficient, competent evidence in the record for the trial court to find that

Child’s best interests are served by his foster parents, and that no bond exists

between Child and Father such that Child would suffer permanent emotional

harm from the termination of Father’s parental rights. We therefore affirm

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the decree terminating Father’s parental rights with regard to Child under

section 2511(a)(2) and (b).

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/09/2020




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