J. S18044/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: E.C., A MINOR        :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
APPEAL OF: P.C. NATURAL FATHER           :         No. 1890 WDA 2017


             Appeal from the Order Dated November 21, 2017,
             in the Court of Common Pleas of Allegheny County
           Orphans’ Court Division at No. CP-02-AP-0000037-2017


BEFORE: STABILE, J., MUSMANNO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 16, 2018

      P.C. (“Father”) appeals from the November 21, 2017 order granting

the petition of the Allegheny County Office of Children, Youth and Families

(“CYF”) to involuntarily terminate the parental rights of Father and

A.C. (“Mother”)1 to minor child, E.C. (“Child”), pursuant to 23 Pa.C.S.A.

§§ 2511(a)(5), (8), and (b). After careful review, we affirm.

      The trial court summarized the relevant facts and procedural history of

this case as follows:

            [CYF] has been involved with the family in question
            since November 2013 when Child’s elder but still
            minor sibling, L.C. (“Sibling”) was born and tested
            positive for cocaine. In a separate but relevant
            action, on April 12, 2016[,] CYF filed a petition for
            the termination of Father’s parental rights to Sibling.
            On September 23, 2016, following a hearing on the
            petition, the Court entered an order terminating the
            parental rights of Father to Sibling. Father made a

1 Mother has not appealed from the order terminating her parental rights to
E.C. and is not a party to this appeal.
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          timely appeal and the Pennsylvania Superior Court
          affirmed this court’s Order. See In re L.C., 160
          A.3d 271 ([Pa.Super.] 2017).

          Child was born [in November] 2015 addicted to
          methadone and opiates for which Mother was not
          prescribed. Child subsequently was hospitalized in a
          newborn intensive care unit (“NICU”) for four (4)
          weeks to undergo withdrawal treatment.           On
          December 31, 2015, CYF was granted an emergency
          custody authorization for Child and he has been
          removed from [Father’s and Mother’s] care since.

          On January 12, 2016, KidsVoice was appointed
          [g]uardian ad litem (“GAL”) for Child for
          dependency proceedings.        Child was adjudicated
          dependent on March 15, 2016 and CYF was given
          supervision with permission to place the Child. The
          initial placement goal for Child was to return him to
          his parents with a concurrent goal of adoption.

          Since Child was adjudicated dependent, multiple
          Permanency Review Hearings were held. The Court
          consistently found that Father was not making
          progress toward his family plan goals and was never
          more than minimally compliant. On October 3, 2016
          following a Permanency Review Hearing the Court
          found that Father had been minimally compliant with
          the permanency plan and had made no progress
          toward    alleviating   the   circumstances   [that]
          necessitated the original placement. Despite these
          findings, the Court’s primary placement goal
          continued to be reunification of Child with Parents
          with a concurrent goal of adoption.

          On January 27, 2017[,] the Court found that
          aggravated circumstances existed against Father
          when the Court terminated his parental rights to
          Sibling on September 23, 2016. Further efforts were
          not ordered to preserve the family and reunify Child
          with Parents.     CYF then filed a Petition for
          Termination of Parental Rights on March 15, 2017.
          CYF averred that they delivered true and correct
          copies of the Petition and Notice of Hearing on


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             March 23, 2017 at 5:27 p.m. Father denied that
             CYF’s [] service ever occurred, averring that Mother
             was given his copies of the Petition and Notice of
             Hearing. Father accepted Personal Service at the
             Termination of Parental Rights hearing dated May
             12, 2017.

             Following yet another Permanency Review Hearing,
             on May 12, 2017[,] the Court found that Father
             continued to show no progress toward alleviating his
             circumstances which created the original placement.
             The Court ordered that the new permanent
             placement goal be Adoption. On July 28, 2017[,] the
             Court ordered that KidsVoice be appointed [as] legal
             counsel for Child for all adoption proceedings,
             including the termination of parental rights hearing.

Trial court opinion, 1/18/18 at 1-3 (internal quotation marks and some

citations omitted).

       On August 18, 2017, the trial court scheduled a termination hearing

that   was   ultimately   continued   until   November   17,   2017.   At   the

November 17, 2017 hearing, the trial court heard testimony from the

following individuals:    Father; Mother; CYF caseworker Amber Saunders;

Dr. Neil Rosenblum, a court-appointed clinical psychologist who evaluated,

inter alia, Father and Child; and Allison Hamilton, a caseworker from

A Second Chance foster care agency. Following the hearing, the trial court

entered orders on November 21, 2017 involuntarily terminating Father’s and

Mother’s parental rights to Child, pursuant to Sections 2511(a)(5), (8), and

(b). On December 19, 2017, Father filed a timely notice of appeal to this

court. That same day, Father filed a concise statement of errors complained




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of on appeal, in accordance with Pa.R.A.P. 1925(b). On January 18, 2018,

the trial court filed its Rule 1925(a) opinion.

      Father raises the following issues for our review:

            1.     Did the trial court abuse its discretion and/or
                   err as a matter of law in appointing KidsVoice
                   as counsel for the Child when an apparent
                   conflict between the legal interests of the Child
                   and the interest of KidsVoice in representing
                   the best interests of the Child in the underlying
                   dependency proceedings was raised by
                   [Father]?

            2.     Did the trial court abuse its discretion and/or
                   err as a matter of law in concluding that
                   termination of [Father’s] parental rights would
                   serve the needs and welfare of the Child
                   pursuant to 23 Pa.C.S.[A.] §2511(b)?

Father’s brief at 6.

      In matters involving involuntary termination of parental rights, our

standard of review is as follows:

            The standard of review in termination of parental
            rights cases requires appellate courts to accept the
            findings of fact and credibility determinations of the
            trial court if they are supported by the record. If the
            factual findings are supported, appellate courts
            review to determine if the trial court made an error
            of law or abused its discretion. [A] decision may be
            reversed for an abuse of discretion only upon
            demonstration       of   manifest      unreasonableness,
            partiality, prejudice, bias, or ill-will. The trial court’s
            decision, however, should not be reversed merely
            because the record would support a different result.
            We have previously emphasized our deference to
            trial courts that often have first-hand observations of
            the parties spanning multiple hearings.




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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and internal quotation

marks omitted). “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).

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

erred as a matter of law in appointing KidsVoice as legal counsel for Child in

these contested termination proceedings when KidsVoice was already

serving as GAL for the Child in the underlying dependency proceedings.

(Father’s brief at 15.)    Father maintains that an inherent conflict between

Child’s legal and best interests precludes a GAL in dependency proceedings

from serving as Child’s legal counsel in contested, termination proceedings.

(Id. at 18-23.) We disagree.

      Our   supreme       court   recently   held   in   a   plurality   decision   in

In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017), that 23 Pa.C.S.A.

§ 2313(a) requires a trial court to appoint counsel for a child in contested

involuntary termination of parental rights proceedings and the failure to do

so can never be harmless.         In re Adoption of L.B.M., 161 A.3d at 180,

183. This decision was originally filed on March 28, 2017, but was corrected



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and replaced on May 23, 2017.               Authoring Justice Wecht, joined by

Justices Donohue and Dougherty, sought to hold that a trial court is required

to appoint separate, independent counsel to represent a child’s legal

interests even when the GAL is an attorney. However, Chief Justice Saylor,

and Justices Baer, Todd, and Mundy, disagreed in different concurring and

dissenting opinions with that part of the lead opinion’s holding. Specifically,

while the majority of the justices agreed that the appointment of counsel for

the child is required in all involuntary termination proceedings and that the

failure to do so by the trial court is structural error, they did not join that

part of Justice Wecht’s opinion which sought to hold that the GAL may never

serve as counsel for the child. Rather, such separate representation would

be required only if Child’s best interests and legal interests were in conflict.

See In re D.L.B., 166 A.3d 322, 329 (Pa.Super. 2017) (interpreting the

supreme court’s decision in In re Adoption of L.B.M. to require separate

representation “only if the child’s best interests and legal interests were

somehow in conflict”).

      Here, no such conflict exists.        Our review of the record reveals that

Child’s   best   interests   and   legal    interests   were   unquestionably   well

represented by KidsVoice and never in conflict.                Father has failed to

demonstrate how Child’s best interests and legal interests were not

represented by KidsVoice and has also failed to identify a conflict between

those interests.   Rather, Father invites us to reverse our opinion in In re



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D.L.B., which we decline to do.         Accordingly, we discern no abuse of

discretion and/or legal error on the part of the trial court in appointing

KidsVoice, the dependency GAL, to serve as Child’s legal counsel in the

contested termination proceedings.

      Father next argues that “the trial court abused its discretion and/or

erred as a matter of law in concluding that termination of [] Father’s

parental rights would serve the needs and welfare of the Child pursuant to

[Section] 2511(b).” (Father’s brief at 24.)

      The termination of parental rights is governed 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 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.




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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) (citation and

quotation marks omitted).

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

pursuant to Sections 2511(a)(5), (8), 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:

                  ....

                  (5)    The child has been removed from
                         the care of the parent by the court
                         or under a voluntary agreement
                         with an agency for a period of at
                         least six months, the conditions
                         which led to the removal or
                         placement of the child continue to
                         exist, the parent cannot or will not
                         remedy those conditions within a
                         reasonable period of time, the
                         services or assistance reasonably
                         available to the parent are not
                         likely to remedy the conditions
                         which led to the removal or
                         placement of the child within a
                         reasonable period of time and
                         termination of the parental rights
                         would best serve the needs and
                         welfare of the child.



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                 ....

                 (8)    The child has been removed from
                        the care of the parent by the court
                        or under a voluntary agreement
                        with an agency, 12 months or
                        more have elapsed from the date
                        of removal or placement, the
                        conditions which led to the removal
                        or placement of the child continue
                        to exist and termination of parental
                        rights would best serve the needs
                        and welfare of the child.

                 ....

           (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)(5), (8), and (b). We need only agree with the trial

court as to any one subsection of Section 2511(a), in addition to

Section 2511(b), to affirm an order terminating parental rights. In re M.M.,

106 A.3d 114, 117 (Pa.Super. 2014).

     Although not specifically challenged by Father, we begin our analysis

of the trial court’s decision to terminate his parental rights by addressing



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Section 2511(a)(8). To meet the requirements of Section 2511(a)(8), CYF

must satisfy the following three-part test:      “(1) that the child has been

removed from the care of the parent for at least twelve (12) months;

(2) that the conditions which had led to the removal or placement of the

child still exist; and (3) that termination of parental rights would best serve

the needs and welfare of the child.”      In re C.L.G., 956 A.2d 999, 1005

(Pa.Super. 2008) (citation and internal quotation marks omitted).

      Upon review, we find that there was clear and convincing evidence to

support the trial court’s termination of Father’s parental rights to Child,

pursuant to Section 2511(a)(8). The record establishes that Child was born

addicted to both methadone and opiates and has resided in his pre-adoptive

foster home since December 31, 2015, following completion of a four-week

treatment program in the NICU immediately following his birth.       (Notes of

testimony, 11/17/17 at 8-9, 29.)     At the time of the November 17, 2017

termination hearing, Child had been removed from Father’s care for over

23 months, nearly his entire life.   (Id.)    Furthermore, as it relates to the

continued existence of the conditions that predicated Child’s removal, the

record demonstrates that Father remains unable to provide essential

parental care.      The testimony of CYF caseworker Saunders demonstrates

Father’s repeated failure to remedy his substance abuse issues or regularly

visit Child.   The trial court summarized Saunders’ testimony, in pertinent

part, as follows:



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          Aside from securing allegedly stable and appropriate
          housing more than a year after the initial
          dependency proceedings for Child, Saunders testified
          that Father otherwise failed CYF’s goals and never
          went above minimal compliance. . . .

          ....

          Father failed to meet his drug and alcohol goals. Of
          the sixty-nine (69) total urine analysis screenings
          that Father was called for, he attended only
          twenty (20) and missed forty-nine (49).      Of the
          twenty (20) attended drug screens, fifteen (15) of
          them were attended between the March 10, 2017
          psychological evaluation and November 17, 2017.

          CYF requested Father to attend hair follicle test,
          which would have shown Father’s drug history for
          the previous three (3) months.   Father did not
          comply.

          ....

          Regarding Father’s different drug and alcohol
          treatment programs, Saunders testified . . . . Father
          began Suboxone treatment in November 2015 at
          Recovery Solutions.       Father then continued
          Suboxone treatment at Freedom Healthcare in
          October 2016. Saunders further testified that Father
          was discharged from inpatient drug treatment at
          Freedom Healthcare in November of 2016 due to a
          drug relapse. Father reported to CYF that he had
          re-engaged another inpatient drug treatment
          program in January 2017 at Magnolia Networks, but
          CYF never received confirmation of it.

          Father failed to [comply with] scheduled visitations
          in accord with his family plan goals. Supervised
          visits were scheduled by CYF for Father and
          supervised by the foster care organization, A Second
          Chance. Father initially was allowed supervised visits
          with Child three (3) times a week, but by March
          2016 due to Father’s nonattendance the visits were
          reduced to twice weekly. By the time of the June 28,


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            2016 hearing Father had only attended eight (8) out
            of twenty-five (25) scheduled visits. Following the
            June 28, 2016 hearing Father’s visits were reduced
            to once per week. Saunders testified that of the
            total one-hundred and eighteen (118) scheduled
            visits, Father attended sixty-five (65) of them and
            missed fifty-three (53). Saunders further testified
            that despite transportation and scheduling issues
            that caused Child to occasionally miss visits at no
            fault of Father’s, the fifty-three missed visits [] were
            in reference specifically to times that Father failed to
            attend when Child was present. The visits were
            occasionally scheduled at Saunders’ office but were
            eventually held in another office. CYF was notified
            by Father that his work schedule conflicted with
            visitations. In response CYF promptly arranged for
            evening visits from 5:30 p.m. to 7:00 p.m. to
            accommodate for Father's work schedule.

Trial court opinion, 1/18/18 at 5-7 (citations and footnote omitted).

      Next, we consider whether termination would best serve the needs and

welfare of Child, as required under the third prong of Section 2511(a)(8),

and whether it was ultimately proper under Section 2511(b). With regard to

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.” 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. . . .
            [T]his 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.      However, as discussed below,
            evaluation of a child’s bonds is not always an easy
            task.


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In re T.S.M., 71 A.3d at 267 (internal case citations omitted).

     In concluding that the termination of Father’s parental rights best

served the needs and welfare of Child, the trial court concluded that the

testimony of Dr. Rosenblum clearly established that no substantial emotional

bond existed between Father and Child. The trial court stated as follows:

           Based on the combination of Dr. Rosenblum’s
           observations and CYF’s testimony regarding Father’s
           nonattendance of visitations, the Court determined
           that Child had developed a significant emotional
           bond with the foster parents and not with Mother or
           Father. . . .

           ....

           This finding was partly based upon Dr. Rosenblum’s
           testimony that Child recognized Father as a familiar
           and safe face but not a primary caregiver.
           Dr. Rosenblum further testified that Child’s bond with
           Father was not so necessary or sufficient that it
           would result in emotional harm to Child. The Court
           also carefully considered Dr. Rosenblum’s testimony
           that if Father was continuing his historic pattern of
           drug screen and visitation nonattendance (as CYF
           testified to) then it would be evident that [Father
           was] not demonstrating a capability to care for Child.

           ....

           . . . . CYF’s testimony of Father not attending
           visitations was highly significant in the Court’s
           bonding analysis. CYF testified that Father failed to
           attend nearly half of all scheduled visitations.
           Father’s historic nonattendance at visits with Child
           was yet another signal to the Court that Father was
           not making efforts to maintain a close relationship
           with Child. While Father alleged that virtually all
           missed visits were not his fault, and while he blamed
           CYF and A Second Chance for missed visitations, the


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            Court however did not find his testimony to be
            credible or his arguments to be proven. The Court,
            therefore, determined that Child’s recognition of
            Father could be classified as a lesser type of bond,
            and not a crucial emotional bond worth saving out of
            fear of irreparable harm to Child.

            The simple reality is that Father has not been
            present in Child’s life enough for a relationship worth
            saving to have formed. Accordingly, the Court found
            that Child did not have a significant bond with Father
            such that Child would be inflicted with emotional pain
            if parental rights were terminated.

Trial court opinion, 1/18/18 at 16-17 (citations and internal quotation marks

omitted).   The record supports these conclusions by clear and convincing

evidence.

      This court has continually recognized that “in cases where there is no

evidence of a bond between a parent and child,” as is the case here, “it is

reasonable to infer that no bond exists.” In re Adoption of J.M., 991 A.2d

321, 324 (Pa.Super. 2010) (citations omitted). In reaching this conclusion,

we emphasize that “[a] child’s life, happiness and vitality simply cannot be

put on hold until the parent finds it convenient to perform parental duties.”

In the Matter of the Adoption of A.M.B., 812 A.2d 659, 675 (Pa.Super.

2002). Our standard of review requires us to accept the trial court’s findings

of fact and credibility determinations where, as here, they are supported by

the record. See In re T.S.M., 71 A.3d at 267. Accordingly, we decline to

reweigh the evidence and reassess witness credibility, as Father repeatedly

asserts that we should do.



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     Based on the foregoing, we conclude that the trial court did not abuse

its discretion by involuntarily terminating Father’s parental rights to Child

pursuant to Section 2511(a)(8) and (b).         Accordingly, we affirm the

November 21, 2017 order of the trial court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/16/2018




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