J-S23014-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF: D.J., A MINOR        : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                                         :
                                         :
                                         :
APPEAL OF: L.S., FATHER                  : No. 2425 EDA 2014

              Appeal from the Decree entered July 29, 2014,
               Court of Common Pleas, Philadelphia County,
             Family Court at No(s): CP-51-AP-0000333-2014,
          CP-51-DP-0000245-2013 and FID: 51-FN-373107-2009


IN THE INTEREST OF: D.J., A MINOR        : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                                         :
                                         :
                                         :
APPEAL OF: L.S., FATHER                  : No. 2517 EDA 2014

               Appeal from the Decree entered July 29, 2014,
                Court of Common Pleas, Philadelphia County,
                Family Court at No(s): 51-FN-373107-2009,
           CP-51-AP-0000332-2014 and CP-51-DP-0000244-2013

BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED APRIL 28, 2015

      In this appeal, L.S. (“Father”) appeals from the decrees entered on

July 29, 2014 involuntarily terminating his parental rights to the twin

children D.J. and D.J. (“Children”). We affirm.

      Children were born in late January 2013. The day following their birth,

the Department of Human Services (“DHS”) received a report that their

mother could not care for them for various reasons, including mental health

issues and lack of housing. Father was incarcerated at the time of Children’s


*Retired Senior Judge assigned to the Superior Court.
J-S23014-15


birth.1 On or about February 1, 2013, DHS arranged to place Children with a

maternal cousin upon their discharge from the hospital.          Children have

remained in maternal cousin’s care ever since.

      On February 12, 2013, Children were adjudicated dependent and

committed to DHS’s custody. At that time, the trial court found that Father

was incarcerated at the Detention Center and ordered that Father be given

visitation if recommended by his therapist.      Permanency review hearings

occurred on July 23, 2013, October 23, 2013 and February 7, 2014. A goal

change hearing occurred on May 6, 2014, at the conclusion of which the trial

court ordered DHS to reach out to Father and inquire about the voluntary

termination of his rights. Subsequently, a social worker met with Father in

prison and Father refused to agree to the termination of his parental rights.

DHS filed its petitions seeking to involuntarily terminate Father’s rights on

July 7, 2014. A hearing on this petition was held on July 29, 2014, at the

conclusion of which the trial court granted DHS’s petitions and terminated

Father’s parental rights.    This timely appeal followed, in which Father

presents the following issues for our review:

            1. Did the [trial] court err in finding sufficient facts
               under 23 [Pa.C.S.A.] § 2511(a) to terminate
               [Father’s] rights?



1
  In 2007, Father was convicted of indecent assault of a minor less than
thirteen years of age, and as result, is subject to certain sex offender
registration requirements. At the time the children were born, Father was
incarcerated for violating these registration requirements.


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              2. Did the [trial] court err in terminating [Father’s]
                 parental rights without finding or considering
                 whether [DHS] made reasonable efforts to reunify
                 [Father] with his children?

              3. Was the lower court required to follow this Court's
                 ruling in In re D.C.D., 91 A.3d 173 (Pa. Super. []
                 2014)[,] appeal granted, 93 A.3d 802 (Pa. []
                 2014) and rev'd, In re D.C.D., [105 A.3d 662
                 (Pa. 2014)]?

Father’s Brief at 6.2

        Our review of a decree terminating parental rights is highly deferential

to the trial court. As this Court has stated:

              When reviewing an appeal from a decree terminating
              parental rights, we are limited to determining
              whether the decision of the trial court is supported
              by competent evidence. Absent an abuse of
              discretion, an error of law, or insufficient evidentiary
              support for the trial court's decision, the decree must
              stand. Where a trial court has granted a petition to
              involuntarily terminate parental rights, this Court
              must accord the hearing judge's decision the same
              deference that we would give to a jury verdict. … The
              trial court is free to make all credibility
              determinations, and may believe all, part, or none of
              the evidence presented. If the findings of the trial
              court are supported by competent evidence, we will
              affirm even if the record could also support the
              opposite result.

In re T.M.T., 64 A.3d 1119, 1124 (Pa. Super. 2013) (citations omitted).

        Section 2511 of the Adoption Act governs termination of parental

rights. Under Section 2511, the trial court must engage in a bifurcated

process. In re C.L.G., 956 A.2d 999, 1004 (Pa. Super. 2008). The initial


2
    We have reordered Father’s issues for purposes of clarity.


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focus is on the conduct of the parent, and the burden of proof is on the

petitioner to establish by clear and convincing evidence the existence of

grounds for termination under Section 2511(a).3 Id. If the trial court finds

that termination is warranted under Section 2511(a), it must then turn to

Section 2511(b), and determine if termination of the parent’s rights is in the

child’s best interest. Id.

     Father first challenges the trial court determination that termination

was proper under Section 2511(a). The trial court found that termination

was proper under Sections 2511(a)(1),(2),(5) and (8).       As we need only

agree with one subsection of this provision, we focus on (a)(1), which

provides 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:

           (1)   The parent by conduct continuing for a period
                 of at least six months immediately preceding
                 the filing of the petition either has evidenced a
                 settled purpose of relinquishing parental claim
                 to a child or has refused or failed to perform
                 parental duties.

23 Pa.C.S.A. § 2511(a)(1).




3
  Where the trial court has found that termination is appropriate under more
than one sub-section of Section 2511(a), “this court need only agree with
the trial court's decision as to any one subsection in order to affirm the
termination of parental rights.” In re T.M.T., 64 A.3d at 1125.


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     Under this provision, there is no requirement that both a settled

purpose to relinquish parental claim and a failure to perform parental duties

must be found in order to find termination proper; rather, “parental rights

may be terminated pursuant to Section 2511(a)(1) if the parent either

demonstrates a settled purpose of relinquishing parental claim to a child or

fails to perform parental duties.” In re Adoption of Charles E.D.M., II,

708 A.2d 88, 91 (Pa. 1998) (emphasis in original). Furthermore,

           [a]lthough it is the six months immediately
           preceding the filing of the petition that is most
           critical to the analysis, the court must consider the
           whole history of a given case and not mechanically
           apply the six-month statutory provision. The court
           must examine the individual circumstances of each
           case and consider all explanations offered by the
           parent facing termination of his parental rights, to
           determine if the evidence, in light of the totality of
           the circumstances, clearly warrants the involuntary
           termination.

In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008).

     This Court has discussed the concept of parental duties as follows:

           In In re Burns, [] 379 A.2d 535 ([Pa.] 1977), the
           [Pennsylvania] Supreme Court stated:

              There is no simple or easy definition of
              parental duties. Parental duty is best
              understood in relation to the needs of a child.
              A child needs love, protection, guidance, and
              support. These needs, physical and emotional,
              cannot be met by a merely passive interest in
              the development of the child. Thus, this court
              has held that the parental obligation is a
              positive duty which requires affirmative
              performance.



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               This affirmative duty encompasses more than
               a financial obligation; it requires continuing
               interest in the child and a genuine effort to
               maintain communication and association with
               the child.

               Because a child needs more than a benefactor,
               parental duty requires that a parent “exert
               himself to take and maintain a place of
               importance in the child's life”.

            Id. at 540 (citations omitted).

            A parent is required to exert a sincere and genuine
            effort to maintain a parent-child relationship; the
            parent must use all available resources to preserve
            the parental relationship and must exercise
            “reasonable firmness” in resisting obstacles placed in
            the path of maintaining the parent-child relationship.
            In re Shives, [] 525 A.2d 801, 803 ([Pa. Super.]
            1987). This court has repeatedly recognized that
            “parental rights are not preserved ... by waiting for a
            more suitable or convenient time to perform one's
            parental responsibilities while others provide the
            child with his or her immediate physical and
            emotional needs.” In re Adoption of Godzak, 719
            A.2d 365, 368 (Pa. Super. 1998) (citation omitted).

In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003).

      The trial court found that Father utterly failed to perform his parental

duties to Children throughout their lives:

            The record and testimonies of the witnesses
            established that at the time of [] Children's birth …
            Father was already incarcerated (N.T. 7/29/14, pgs.
            10, 11). Father continues to be incarcerated at SCI
            Waymart with a maximum of two to four years
            sentence for failure to register as a sex offender
            (N.T. 7/29/14, pgs. 4, 13, 14, 17). After his release,
            he will have to be on probation for five years (N.T.



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           7/29/14, pgs. 13, 14). Since … [the] birth of []
           Children, until May of 2014, [the] date [o]n which
           Father wrote a letter to the CUA social worker,
           Father never contacted [] Children nor did he inquire
           about them (N.T. 7/29/14, pgs. 12,13). Father has
           an affirmative duty to reach out to DHS and CUA
           (N.T. 7/29/14, pg. 8). Father admitted that he never
           attempted to outreach DHS (N.T. 7/29/14, pg. 11) or
           try to establish contact with [] Children's mother or
           other relatives (N.T. 7/29/14, pg. 12). Father argued
           that he was not able to call due to the fact that he
           has no job or money (N.T. 7/29/14, pg. 12), that he
           could not write from jail (N.T. 7/29/14, pg. 16), that
           he did not have family members[’] telephone
           numbers (N.T. 7/29/14, pg. 12), and that he did not
           have DHS address (N.T. 7/29/14, pg. 16). Father[’s]
           excuses are without merit since Father received a
           package from DHS while he was at the Camp Hill
           Prison (N.T. 7/29/14, pgs. 14-15) as far back as
           February[] 2013, when [] Children came into care.
           Father made no effort to establish contact with DHS.
           Father also admits he received DHS correspondence
           sometime in September 2013, but he made no effort
           to contact DHS (N.T. 7/29/14, pgs. 15-17). Father
           never asked for visitation nor did he request a video
           visitation (N.T. 7/29/14, pgs. 8-10). Father never
           informed [the] CUA social worker about the fact that
           he had a therapist in order to obtain visitations (N.T.
           7/29/14, pg. 9). Furthermore, Father has never
           provided any care for [] Children[.] (N.T. 7/29/14,
           pg. 4).

            … Father has continually failed to perform his
           parental duties toward [] Children, and never utilized
           any of the available resources to foster a close
           relationship with [] Children. Father never requested
           visitations (N.T. 7/29/14, pgs. 8-9) and only wrote
           to the CUA social worker in May 2014 (N.T. 7/29/14,
           pgs. 11-12), one year and four months after []
           Children's birth. As a result, DHS has met its burden
           under §2511 (a)(1)[.]

Trial Court Opinion, 12/22/14, at 4-5.



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     We have reviewed the record and conclude that the trial court’s

findings are supported thereby and that it did not err in applying the law.

Accordingly, we have no basis upon which to disturb its determination. In

re T.M.T., 64 A.3d at 1124.4

     Father’s second and third issues are related and so we address them

together.   Father argues that the trial court was required to consider

whether DHS made reasonable efforts to reunify Father with Children before

terminating his rights, that it did not do so, and therefore that the Court

erred. Father’s Brief at 20-24. Father bases this argument on the holding of

this Court’s decision in In re D.C.D., 91 A.3d 173 (Pa. Super. 2014), rev’d,

105 A.3d 662 (Pa. 2014). As Father acknowledges, in December 2014, the


4
  Although not explicitly raised by Father on appeal, we note that our review
reveals that the trial court did not err in its determination that DHS met its
burden to prove that termination was warranted under Section 2511(b).
When considering the needs and welfare of a child pursuant to the Section
2511(b) inquiry, the trial court must consider whether termination of
parental rights would best serve the developmental, physical and emotional
needs of the child. In re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super.
2005).     “Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.” Id. at 1287
(citation omitted). The trial court must also discern the nature and status of
the parent-child bond, with utmost attention to the effect on the child of
permanently severing that bond. Id. In this case, the trial court found that
there is no bond between Father and Children, as they have never met, and
that Children have “a mother/child bond” with their maternal cousin. Trial
Court Opinion, 12/22/14, at 8. The trial court concluded that Children will
not suffer irreparable harm if Father’s rights are terminated, and that they
would be harmed if removed from maternal cousin because she is the only
family they have ever known. Id. The record supports the trial court’s
findings, see Recreated Record in Lieu of Recording pursuant to Pa.R.A.P.
1923, 11/5/14, ¶¶ c-p, and so we find no error with the trial court’s
conclusion.


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Pennsylvania Supreme Court reversed our decision in D.C.D. and held that

there is no requirement that an agency must provide reasonable efforts to a

parent prior to granting a petition seeking the termination of that parent’s

rights.5 Nonetheless, Father urges us to apply the holding from this Court’s

decision in D.C.D.    Father’s Brief at 16-19. Yet in making this argument,

Father is ignoring the fact that the trial court explicitly found that DHS did

make reasonable efforts to reunify Father with Children.     See Trial Court

Opinion, 12/22/14, at 8 (stating that it found DHS made reasonable efforts

and detailing those efforts individually).   Thus, Father’s argument has no

basis and cannot succeed.6

        Decrees affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/28/2015




5
    See In re D.C.D., 105 A.3d 662, 675 (Pa. 2014).
6
  Seemingly cognizant of this, Father sets forth another issue in which he
asks this Court to review the trial court’s determination that DHS provided
reasonable reunification efforts. Father’s Brief at 24. Father did not include
this issue in his statement of matters complained of on appeal, and so he
has waived it for purposes of appeal. See Pa.R.A.P. 1925(b)(4)(vii).


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