J-S01044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.M.                     :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                                             :
                                             :
APPEAL OF: J.A.M., SR., NATURAL              :
FATHER                                       :         No. 1463 WDA 2014

                     Appeal from the Order August 11, 2014
               In the Court of Common Pleas of Lawrence County
             Orphans’ Court at No(s): 20014 of 2014 O.C. Adoption


BEFORE: GANTMAN, P.J., JENKINS, J. and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED JANUARY 29, 2015

        Appellant, J.A.M., Sr. (“Father”), appeals from the order entered in the

Lawrence County Court of Common Pleas, which involuntarily terminated his

parental rights to his minor child, J.M. (“Child”). We affirm.

        In its opinion, the trial court fully set forth the relevant facts of this

case.    Therefore, we have no reason to restate them.           Procedurally, on

March 14, 2014, Lawrence County Children and Youth Services (“CYS”) filed

a petition for involuntary termination of Father’s parental rights to Child.1

The court held a hearing on the petition on July 31, 2014. On August 14,

2014, the court entered an order involuntarily terminating Father’s parental

rights to Child. Father filed a timely notice of appeal on September 9, 2014,



1
   The petition also sought to terminate the parental rights of B.M.L.
(“Mother”), who is not a party to this appeal. Following a hearing, the court
terminated Mother’s parental rights by a separate order filed on April 16,
2014.
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along with a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(a)(2)(i).

      Father raises the following issues for our review:

         WHETHER [CYS] PROVIDED BY CLEAR AND CONVINCING
         EVIDENCE THAT [FATHER] 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 [CHILD] OR HAS REFUSED OR
         FAILED TO PERFORM HIS PARENTAL DUTIES.

         WHETHER [CYS] PROVIDED BY CLEAR AND CONVINCING
         EVIDENCE THAT THE CONDITIONS AND CAUSES OF THE
         INCAPACITY, ABUSE, NEGLECT OR REFUSAL CANNOT OR
         WILL NOT BE REMEDIED BY [FATHER].

         WHETHER [CYS] PROVIDED BY CLEAR AND CONVINCING
         EVIDENCE THAT IT IS IN THE BEST INTEREST OF [CHILD]
         THAT [FATHER’S] PARENTAL RIGHTS BE TERMINATED.

(Father’s Brief at 5).

      The standard and scope of review applicable in termination of parental

rights cases are as follows:

         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 it would give to a jury verdict.
         We must employ a broad, comprehensive review of the
         record in order to determine whether the trial court’s
         decision is supported by competent evidence.

         Furthermore, we note that the trial court, as the finder of
         fact, is the sole determiner of the credibility of witnesses


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        and all conflicts in testimony are to be resolved by [the]
        finder of fact. The burden of proof is on the party seeking
        termination to establish by clear and convincing evidence
        the existence of grounds for doing so.

        The standard of clear and convincing evidence means
        testimony that is so clear, direct, weighty, and convincing
        as to enable the trier of fact to come to a clear conviction,
        without hesitation, of the truth of the precise facts in issue.
        We may uphold a termination decision if any proper basis
        exists for the result reached. If the trial court’s findings
        are supported by competent evidence, we must affirm the
        court’s decision, even though the record could support an
        opposite result.

In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal

denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted).

     CYS sought the involuntary termination of Father’s parental rights on

the following grounds:

        § 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.

                                 *    *    *

           (b) Other       considerations.—The        court   in
           terminating the rights of a parent shall give primary


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            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).       “Parental rights may be involuntarily

terminated where any one subsection of Section 2511(a) is satisfied, along

with consideration of the subsection 2511(b) provisions.”     In re Z.P., 994

A.2d 1108, 1117 (Pa.Super. 2010).

      Under Section 2511(b), the court must consider whether termination

will best serve the child’s needs and welfare.     In re C.P., 901 A.2d 516

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child.” Id.

at 520. “In this context, the court must take into account whether a bond

exists between child and parent, and whether termination would destroy an

existing, necessary and beneficial relationship.” In re Z.P., supra at 1121.

         When conducting a bonding analysis, 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.

Id. (internal citations omitted).

      “The statute permitting the termination of parental rights outlines


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certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and may properly have his…rights terminated.”         In re

B.L.L., 787 A.2d 1007, 1013 (Pa.Super. 2001).

           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.

           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.

        Parental duty requires that the parent act affirmatively
        with good faith interest and effort, and not yield to every
        problem, in order to maintain the parent-child relationship
        to the best of his…ability, even in difficult circumstances.
        A parent must utilize 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. 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 [the child’s] physical
        and emotional needs.

        Where a parent is incarcerated, the fact of incarceration


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         does not, in itself, provide grounds for the termination of
         parental rights. However, a parent’s responsibilities are
         not tolled during incarceration. The focus is on whether
         the parent utilized resources available while in prison to
         maintain a relationship with his…child. An incarcerated
         parent is expected to utilize all available resources to
         foster a continuing close relationship with his…children.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations and quotation marks omitted).

“[A] parent’s basic constitutional right to the custody and rearing of

his…child is converted, upon the failure to fulfill his…parental duties, to the

child’s right to have proper parenting and fulfillment of his…potential in a

permanent, healthy, safe environment.” Id. at 856.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the order and well-reasoned opinion of the Honorable

Eugene E. Fike, II, we conclude Father’s issues merit no relief.       The trial

court’s order and Rule 1925(a) opinion comprehensively discuss and

properly dispose of the questions presented. (See Trial Court Opinion, filed

September 23, 2014, at 2-7; Trial Court Order, filed August 14, 2014, at 2-

3) (finding: Father was incarcerated for various periods of time beginning in

2008, including at time of hearing on July 31, 2014; after Father’s release

from prison in July 2013, CYS prepared permanency plan and family service

plan with primary goal of reunification; Father incurred new criminal charges

in December 2013; Father did not exert significant effort to achieve

objectives of plans, which included treatment of his drug and alcohol



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addictions and achievement of financial and personal stability; Father failed

drug tests on multiple occasions; although Father made contact for drug and

alcohol assessment, he failed to follow up with intake or treatment

recommended by Drug and Alcohol Commission; Father did not participate in

required psychological evaluations; Father has not demonstrated financial

and personal stability; in December 2013 meeting with CYS caseworker,

Father reported his housing circumstances were uncertain because of his

failure to pay rent; Father’s testimony was unclear as to planned living

arrangements after his expected release from prison in August 2014; Father

has cancelled multiple scheduled visits with Child; classes and programs

Father completed while in prison were not relevant to family service plan

requirements and Father’s specific needs for rehabilitation; CYS caseworker

testified that Child has progressed in residential treatment facility; Child has

far fewer outbursts and exhibits much less disruptive behavior; Child

appears happy and well-adjusted, talking and interacting positively with

foster family; caseworker testified that Child did not display significant

positive bond with Father; Father failed to take responsibility for his previous

failings and addictions, and failed to take advantage of opportunity to

demonstrate improvement in parenting skills and ability to care for Child

responsibly and safely; CYS proved by clear and convincing evidence that

continued incapacity, neglect, and refusal of Father has caused Child to be

without essential parental care, control, and subsistence necessary for



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Child’s physical or mental well-being; evidence is clear and convincing that

Father cannot or will not remedy conditions that led to termination of his

parental rights, and termination will best serve Child’s needs and welfare).

Accordingly, we affirm on the basis of the trial court opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/29/2015




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