J-S77045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: A.S.B., A MINOR                 IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA

APPEAL OF: J.E.B., FATHER                           No. 2387 EDA 2014


                 Appeal from the Decree entered July 18, 2014,
          in the Court of Common Pleas of Philadelphia County, Family
                   Court, at No(s): CP-51-AP-0000473-2013

BEFORE: STABILE, JENKINS, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JANUARY 16, 2015

        J.E.B. (Father) appeals from the decree entered July 18, 2014, in the

Court    of   Common    Pleas   of   Philadelphia    County,   which   terminated

involuntarily his parental rights to his minor son, A.S.B. (Child), born in

March of 2012.1 We affirm.

        The trial court summarized the relevant factual and procedural history

of this matter as follows.

        On March 7, 2012, the Department of Human Services [(DHS)]
        received a General Protective Services (GPS) report alleging that
        [M]other moved to Philadelphia to avoid DYFS attempts to place
        the child. … Mother admitted using Thorazine, Ativan and
        Vicodin during her pregnancy. Mother has a history of bipolar
        disorder, anxiety and drug abuse. Additionally, [M]other had a
        history of hospitalizations for mental health issues. The report
        was substantiated.




* Retired Senior Judge specially assigned to the Superior Court.
1
  The trial court entered a separate decree that same day, in which it
terminated involuntarily the parental rights of Child’s mother, C.J.B.
(Mother). Mother is not a party to this appeal.
J-S77045-14


     On March 9, 2012, [F]ather was released from Belmont Center
     for Comprehensive Treatment. [F]ather was diagnosed with
     depression and suffered from suicidal ideations.

     [Child] was discharged from the Hospital of the University of
     Pennsylvania (HUP) on March 12, 2012. [DHS] obtained an
     Order of Protective Custody (OPC) for [Child] and placed the
     child in a foster home through Children’s Services, Inc.

     On March 14, 2012, a shelter care hearing was held. [C]hild was
     temporarily committed to DHS.        Mother and [F]ather were
     granted supervised visits at the agency.

     On March 22, 2012, DHS learned that [F]ather had a medical
     appointment for medication management and out-patient
     therapy through Horizon House, Inc[.] for mental health
     treatment.

     DHS held a Family Service Plan meeting on April 9, 2012. The
     parental objectives were the following: (1) the parents will
     participate in a mental health evaluation; (2) the parents will
     comply with all treatment recommendations including therapy
     and medication prescribed; (3) the parents will sign
     authorization forms to permit the Children and Youth Division
     (CYD) to obtain copies of evaluations and progress reports; (4)
     the parents will occupy and locate suitable housing with operable
     utilities; (5) the parents will maintain regular visits with the
     child; (6) the parents will not use physical violence or threats to
     resolve family conflicts; (7) the parents will participate in an
     evaluation for drug and alcohol abuse; (8) the parents [will]
     maintain a drug free status and complete 5 successful drug
     screens. Father did not participate in the meeting. Mother
     refused to sign the FSP.

     On May 23, 2012, an adjudicatory hearing was held. [Child] was
     committed to DHS and adjudicated dependent.

     On September 26, 2012, a permanency review hearing was held.
     Father missed 3 visits since he was released from prison.
     [F]ather was referred to the Clinical Evaluation Unit (CEU) for a
     forthwith drug screen and assessment.

Trial Court Opinion, 9/12/2014, at 1-2 (unnumbered).


                                    -2-
J-S77045-14


      On August 23, 2013, DHS filed a petition to terminate Father’s

parental rights to Child involuntarily. A termination hearing was held on July

18, 2014.     Following the hearing, the trial court entered its decree

terminating Father’s rights. Father timely filed a notice of appeal, along with

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).

      Father now raises the following claims for our review.

      1. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of [F]ather, [] pursuant to 23 Pa.
      C.S.A. sections 2511(a)(1) where [F]ather presented evidence
      that he tried to perform his parental duties.         Additionally,
      [F]ather visited [Child] throughout [the] time he was in foster
      care[?]

      2. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of [F]ather, [] pursuant to 23 Pa.
      C.S.A. sections 2511(a)(2) where [F]ather presented evidence
      that he has remedied his situation by completing anger
      management, receiving mental health treatment and has
      housing. Additionally, [F]ather is employed full time[?]

      3. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of [F]ather, [] pursuant to 23 Pa.
      C.S.A. sections 2511(a)(5) where evidence was provided to
      establish that the child was removed from the care of the
      [M]other.    Additionally, [F]ather visited with [Child] and
      maintained contact with him over the last several months[?]

      4. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of [F]ather, [] pursuant to 23 Pa.
      C.S.A. sections 2511(a)(8) where evidence was presented to
      show that [F]ather is capable of caring for his child after
      successfully completing mental health treatment. Additionally,
      [F]ather visited with [Child] and maintained contact with him
      over the last several months[?]



                                     -3-
J-S77045-14


      5. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of [F]ather, [] pursuant to 23 Pa.
      C.S.A. sections 2511(b) where evidence was presented to
      establish that [C]hild had a close bond with [F]ather[?]

Father’s Brief at 7.

      We consider Father’s claims mindful of the following.

      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.

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

omitted).

      Our courts apply a two-part analysis in reviewing a decree terminating

parental rights. As we explained in In re L.M., 923 A.2d 505 (Pa. Super.

2007),

      [i]nitially, 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

                                      -4-
J-S77045-14


      paid to the effect on the child of permanently severing any such
      bond.

Id. at 511 (citations omitted).

      Here, the trial court terminated Father’s rights pursuant to 23 Pa.C.S.

§ 2511(a)(1), (2), (5), (8), and (b). “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).” In re J.F.M., 71 A.3d 989, 992 (Pa. Super.

2013) (citing In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc),

appeal denied, 863 A.2d 1141 (Pa. 2004)). For the purposes of our analysis,

we focus on subsection 2511(a)(2). The statute provides, in relevant part,

as follows.2

      (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

2
  We note that the trial court concluded incorrectly that Father’s parental
rights could be terminated under subsections 2511(a)(5) and (a)(8). Both
of these subsections require that the subject child have “been removed from
the care of the parent by the court or under a voluntary agreement with an
agency” in order to be applicable. 23 Pa.C.S. § 2511(a)(5), (8). Because
Child was never in Father’s care, his parental rights cannot be terminated
under these Sections. See In re C.S., 761 A.2d 1197, 1200 (Pa. Super.
2000) (en banc) (concluding that termination was inappropriate under
subsectionsections 2511(a)(5) and (8) “because the record reflects that C.S.
was never in Appellant’s care and, therefore, could not have been removed
from his care.”); In re Z.P., 994 A.2d 1108, 1123 n.2 (Pa. Super. 2010)
(same).
                                    -5-
J-S77045-14


     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. § 2511(a)(2), (b).

     We first address whether the trial court abused its discretion by

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

     In order to terminate parental rights pursuant to 23 Pa.C.S.A
     § 2511(a)(2), the following three elements must be met: (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) (citation

omitted)).   “The grounds for termination 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) (citations omitted).



                                    -6-
J-S77045-14


         Instantly, the trial court concluded that Father’s parental rights should

be terminated because, inter alia, Father failed to complete mental health

treatment, anger management treatment, or domestic violence training, and

because Father attended visits with Child only 50% of the time. Trial Court

Opinion, 9/12/2014, at 3-4 (unnumbered). Father disputes the trial court’s

findings, arguing that he completed anger management and mental health

treatment, and that he visited with Child “as consistently as he could.”

Father’s Brief at 15-17.       Father also contends that DHS failed to make

reasonable efforts to reunify him with Child, and that he was not aware of

his FSP goals. Id. at 16-18. Father emphasizes that he is employed and

has appropriate housing for Child. Id. at 15-17.

         After a thorough review of the record in this matter, we conclude that

the trial court did not abuse its discretion by terminating Father’s parental

rights    involuntarily   pursuant   to   subsection   2511(a)(2).   During   the

termination hearing, DHS worker, Tracey Campbell, explained that Father is

employed and resides with his biological mother.          N.T., 7/18/2014, at 17.

Ms. Campbell testified that she never received any documentation indicating

that Father had completed or was completing mental health treatment or

domestic violence training. Id. at 17-18. Similarly, while Father informed

Ms. Campbell that he had completed anger management treatment, Ms.

Campbell testified that Father did not provide her with a certificate

confirming his story. Id. at 18. Agency worker, Brenda Calhoun, explained


                                          -7-
J-S77045-14


that Father attends visits with Child about twice per month, which amounts

to half of the offered visits. Id. at 33, 38-39.

      Accordingly, the record supports the trial court’s finding that, at the

time of the termination hearing, Father had failed for over two years to

complete the FSP objectives necessary to obtain custody of Child. Father’s

actions, or lack thereof, show that he is presently incapable of being a

parent. Father’s incapacity has left Child without parental care and control,

and it was reasonable for the trial court to conclude that Father cannot, or

will not, remedy this incapacity.

      While Father contends that he was unaware of his FSP objectives, this

argument does not entitle him to relief. Admittedly, Ms. Campbell stated on

cross-examination that there had been a total of only three FSP meetings in

this case: on April 9, 2012; March 23, 2013; and in October of 2013, after

the petition to terminate Father’s parental rights had already been filed. Id.

at 26-27. She conceded that she did not know if Father had been invited to

any of the FSP meetings. Id. at 27-29. She also stated that she did not

know if Father had attended the two earlier FSP meetings. Id. at 29. Ms.

Campbell did state that she believed that Father was aware of his FSP goals

because she “had plenty of time to talk out in the hallway” with Father

during a continuance hearing.       Id. at 28.   This hearing took place during

February of 2014, also well after the filing of the petition to terminate

Father’s parental rights. Id.


                                       -8-
J-S77045-14


      However, during Father’s testimony, his counsel asked him what he

had done to achieve his FSP objectives. Id. at 43. Father did not express

confusion as to what his objectives were or how to complete them, nor did

he complain that he had only recently identified his objectives.      Instead,

Father claimed that he had successfully completed an anger management

class “last year,” but that he did not have a certificate with him at the time.

Id. He stated that he had e-mailed a copy of the certificate to his former

DHS worker. Id. Father also admitted that he knew that obtaining mental

health treatment was one of his objectives.     Id.   He claimed that he had

been attending therapy, but that he was discharged because it conflicted

with his work schedule, and because the therapist felt that treatment was no

longer needed. Id. at 44. The trial court was free to reject Father’s claims

as incredible, and to infer from this testimony that Father was aware of his

FSP objectives throughout the case.

      Finally, we note that the issue of whether DHS provided Father with

reasonable reunification efforts is not determinative in this matter.      Our

Supreme Court has expressly rejected the contention that reasonable efforts

are necessary to support a termination decree under Section 2511(a)(2).

See In re D.C.D., 2014 WL 7089267 (Pa. filed December 15, 2014).            In

D.C.D., the Court analyzed the language of subsection 2511(a)(2), as well

as Section 6351 of the Juvenile Act, 42 Pa.C.S. § 6351. The Court reasoned

that, while “reasonable efforts may be relevant to a court’s consideration of


                                      -9-
J-S77045-14


both the grounds for termination and the best interests of the child,” neither

of these provisions, when read together or individually, requires reasonable

efforts.   Id. at *8-9 (citation omitted).   The Court also concluded that

reasonable efforts were not required to protect a parent’s constitutional right

to the care, custody, and control of his or her child. Id. at 10-11. No relief

is due.

      We next consider whether the trial court abused its discretion by

terminating Father’s parental rights under Section 2511(b).

      Subsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
      “Intangibles such as love, comfort, security, and stability are
      involved in the inquiry into the needs and welfare of the child.”
      In addition, we instructed that 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. However, in cases where there is no evidence of a bond
      between a parent and child, it is reasonable to infer that no bond
      exists.   Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (some

citations omitted).

      Here, the trial court concluded that Child would not suffer irreparable

harm if Father’s parental rights were terminated, and that termination would

be in Child’s best interest.       Trial Court Opinion, 9/12/2014, at 5

(unnumbered pages). The court reasoned that Child has never resided with

Father, and that Child “has not had an opportunity to bond with [F]ather due


                                    - 10 -
J-S77045-14


to [F]ather’s lack of visitation.”   Id. at 4-5. The court noted that Child is

bonded with his foster family.       Id.    Father argues that he is bonded with

Child and does well during visits, and that termination of his parental rights

could have a detrimental effect on Child. Father’s Brief at 18-19.

      We again conclude that the trial court did not abuse its discretion. Ms.

Campbell testified that DHS obtained protective custody of Child several

days after his birth, while Child was still in the hospital. N.T., 7/18/2014, at

8-11. At the time of the termination hearing, Child had been in the same

preadoptive foster home for a year and approximately nine months. Id. at

10-11.   Ms. Campbell stated that she had observed Child in his current

foster home, and that Child “has a really close bond” with his foster mother

and calls her “mom.” Id. at 20. Ms. Campbell opined that Child would not

be irreparably harmed if Father’s parental rights were terminated, and that it

would be beneficial for Child to find permanency in his current environment

where he appears to feel very comfortable. Id. at 22-23.

      Similarly, Ms. Calhoun testified that she had observed Child with his

foster family on three occasions.          Id. at 32-33.   She noted that Child is

“very engaged” with his foster mother and her son, and “[i]t’s like he’s part

of the family there. They treat him like he’s just another brother.” Id. at

33. She testified that Child starts his visits with Father “very reserved, and

kind of withdrawn.” Id. at 35, 40. It takes Child about 15 to 20 minutes to

“warm up and get more interactive.” Id. Ms. Calhoun stated that Father is


                                       - 11 -
J-S77045-14


appropriate during visits and tries to engage with Child. Id. at 40. Father

testified that he had been missing visits with Child, but claimed that the

visits were missed because of “stomach bugs being in the home,” and

because of emergencies at work.        Id. at 45.   He stated that he always

notifies the agency when he is going to miss a visit. Id.

        Thus, the record confirms that there was no evidence presented during

the termination hearing to indicate that Father and Child have a bond, other

than the fact that Father has visited with Child twice per month. Instead,

the testimony revealed that Child is bonded with his foster family, with

whom he has lived for the majority of his life.     It was reasonable for the

court to determine that it would be in Child’s best interest for Father’s

parental rights to be terminated, and that Child would not suffer irreparable

harm.

        Accordingly, because we conclude that the trial court did not abuse its

discretion by terminating Father’s parental rights involuntarily pursuant to

subsections 2511(a)(2) and (b), we affirm the decree of the trial court.

        Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/16/2015


                                     - 12 -
