J-A04043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF:                            IN THE SUPERIOR COURT OF
IN THE ADOPTION OF:                                  PENNSYLVANIA
S.R.M., A MINOR,

                            Appellee



APPEAL OF: R.M.B., FATHER

                                                    No. 991 WDA 2015


                  Appeal from the Order Entered May 12, 2015
                In the Court of Common Pleas of McKean County
                      Orphans’ Court at No(s): 42-12-0259


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY SHOGAN, J.:                            FILED APRIL 12, 2016

       R.M.B. (“Father”) appeals from the order entered on May 12, 2015,

granting the petition filed by the McKean County Children and Youth Services

(“CYS” or the “Agency”) to involuntarily terminate Father’s parental rights to

his daughter, S.R.M. (“Child”).1 We affirm.

       The orphans’ court set forth the relevant history of this case in its

memorandum. Orphans’ Court Memorandum, 5/12/15, at 1–9. We adopt

the orphans’ court’s recitation of facts for purposes of this appeal; we set


____________________________________________


1
   On May 11, 2015, the orphans’ court involuntarily terminated the parental
rights of T.A.M. (“Mother”). Mother has not filed an appeal, and she is not a
party to this appeal.
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forth only those facts, as found by the orphans’ court, that are necessary to

understand our disposition.

     Child was born in March of 2008 and initially resided with Mother and

Father. Approximately nine months after Child’s birth, Mother left Child in

the care of Father and moved to Florida, stating that she was unable to be a

parent. N.T., 4/10/15, at 112; Orphans’ Court Memorandum, 5/12/15, at 1.

Child then lived with Father, who has a history of mental illness, and

Father’s grandmother, S.B. (“Great-Grandmother”). When Father attempted

suicide, CYS assumed custody of Child, who was then nineteen months old,

and placed her in the care of Father’s aunt, S.T. (“Great-Aunt”), and uncle,

G.T. (collectively “the T.s”), on October 27, 2009.         Id.   Child was

adjudicated dependent on February 9, 2010.

     Father resumed living with Great-Grandmother and had supervised

visitation with Child; Father also was homeless at times.    Orphans’ Court

Memorandum, 5/12/15, at 3.      Father had minimal compliance with court-

ordered recommendations. He was incarcerated in early 2011, released that

spring, and pled guilty on June 30, 2011, to public drunkenness, a weapon

charge, possession of marijuana, and criminal mischief. The court imposed

a probationary sentence. Id.

     Once again, Father lived with Great-Grandmother and resumed

supervised visits with Child, with whom he formed a bond. Orphans’ Court

Memorandum, 5/12/15, at 3–4.      He was arrested on September 7, 2011,


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related to a stabbing incident over a bottle of vodka, and he was

incarcerated. A jury found him guilty of two counts of aggravated assault

and one count each of simple assault and recklessly endangering another

person. On July 30, 2012, the court imposed an aggregate sentence of five

and one-half to eleven years in a state correctional facility. Father’s earliest

release date is March 4, 2017, and his maximum release date is September

7, 2022. Id. at 4. On appeal, this Court affirmed Father’s sentence. Id.

         Meanwhile, Child was living with the T.s and occasionally visiting

Father at prison. Child allegedly formed a bond with the T.s. CYS filed a

petition to terminate parental rights in December 2012, and the T.s were

listed as prospective adoptive parents. In the summer of 2013, Great-Aunt

was found intoxicated in a local Wal-Mart parking lot.         Orphans’ Court

Memorandum, 5/12/15, at 6.        When Great-Aunt refused to follow through

with CYS concerns, Child was removed from the T.s’ home and placed in

foster care on October 19, 2013, with M.C. and V.C. (“the C.s”), where she

resides to this day. Initially, because the C.s were not interested in a long-

term-placement option, CYS withdrew its termination petition as adoption no

longer was an option. Eventually, the C.s capitulated and agreed to adopt

Child.     However, they are not willing to transport Child to the state

correctional facility to visit with Father. Id. at 6–7.

         On October 28, 2014, CYS filed a second petition for the involuntary

termination of the parental rights of Father and Mother. The orphans’ court


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held a hearing on January 5, 2015, where the current CYS caseworker,

Brittany Falconi, testified, as did Dr. Allen Ryen, who performed a bonding

assessment and was qualified as an expert. The hearing continued on April

10, 2015, where Jeanie Bailey, Child’s former CYS caseworker from March

2010 until November 2011, and prospective adoptive parents, the C.s,

testified.   N.T., 4/10/15, at 8-9, 49, 82.   Father also testified on his own

behalf.

      Ms. Falconi testified that Child is comfortable in the C.s’ home, is

bonded with them, and loves them.         N.T., 1/5/15, at 34–35. She offered

that the involuntary termination of Father’s parental rights would best serve

Child’s developmental, physical and emotional needs, and welfare.      Id. at

41. Ms. Falconi testified that it was not in Child’s best interest to prolong

foster care, given the length of time Child has been in placement, because

Father’s release date and his situation upon release are unknown, and in

light of the C.s’ willingness to adopt Child. Id. Ms. Falconi opined that the

termination of Father’s parental rights and Child’s adoption by the C.s would

provide Child with permanency.      Id.    She acknowledged that Child has a

relationship with Father. Id. at 42. Ms. Falconi stated that the C.s provide

Child with comfort, security, and stability. Id.

      The orphans’ court terminated Father’s parental rights on May 12,

2015, pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b). On June 11,

2015, Father timely filed a notice of appeal along with a concise statement


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of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and

(b), in which he raised nine issues for review.

       In his brief on appeal, Father raises the following single issue:

             Whether the Court below erred in finding that termination
       of the parental rights of [Father] would best serve the needs and
       welfare of [Child] under 23 Pa.C.S. § 2511(a)(5), 23 Pa.C.S. §
       2511(a)(8) and 23 Pa.C.S. § 2511(b), including that that
       determination was against the weight of the evidence and that
       there was not sufficient evidence to support that conclusion.

Appellant’s Brief at 5 (footnote omitted).2

       Father argues that there was insufficient evidence to support a finding

that severing his bond with Child served Child’s needs and welfare. Father

further avers that Dr. Ryen’s expert testimony indicated that severing the

bond between Father and Child would have devastating effects on Child.

Citing In re E.M., 620 A.2d 481 (Pa. 1993), Father asserts that the

termination of his parental rights cannot be sustained.

       In reviewing an appeal from an order 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. In re: R.J.T.,
       608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings
       are supported, appellate courts review to determine if the trial
____________________________________________


2
   In his brief, Father states that he has consolidated the first eight claims
listed in his Pa.R.A.P. 1925(b) statement into this single issue.



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     court made an error of law or abused its discretion. Id.; In re
     R.I.S., 614 Pa. 275, 36 A.3d 567, 572 (Pa. 2011) (plurality). As
     has been often stated, an abuse of discretion does not result
     merely because the reviewing court might have reached a
     different conclusion. Id.; see also Samuel-Bassett v. Kia
     Motors America, Inc., 613 Pa. 371, 455, 34 A.3d 1, 51 (Pa.
     2011); Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 634
     (Pa. 2003). Instead, a decision may be reversed for an abuse of
     discretion    only    upon      demonstration         of     manifest
     unreasonableness, partiality, prejudice, bias, or ill-will. Id.

           As we discussed in R.J.T., there are clear reasons for
     applying an abuse of discretion standard of review in these
     cases. We observed that, unlike 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. R.J.T., 9 A.3d at
     1190.    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
     Atencio, 539 Pa. 161, 165, 650 A.2d 1064, 1066 (Pa. 1994).

In re I.E.P., 87 A.3d 340, 343–344 (Pa. Super. 2014) (quoting In re

Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012)).

     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). We

have explained that the “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


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the truth of the precise facts in issue.’” Id. (quoting In re J.L.C., 837 A.2d

1247, 1251 (Pa. Super. 2003)). Moreover, 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 B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004) (en banc).

       The orphans’ court terminated Father’s parental rights pursuant to 23

Pa.C.S. § 2511(a)(2), (5), (8), and (b). Order, 5/12/15, at 1–2.3 Section

2511(a)(2), (5), (8), and (b) 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.

                                          ***

           (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
____________________________________________


3
   On the second page of its order, the orphans’ court apparently made a
clerical error in citing 23 Pa.C.S. § 2511(a)(1), which was not quoted in the
order. Further, although the trial court did not cite section 2511(b) in its
order, it discussed and considered this section in its memorandum that
accompanied the order. Orphans’ Court Memorandum, 5/12/15, at 11.



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         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.

                                    ***

         (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. § 2511. This Court has explained that the focus in terminating

parental rights under section 2511(a) is on the parent, but under section

2511(b), the focus is on the child. In re Adoption of C.L.G., 956 A.2d 999,

1008 (Pa. Super. 2008) (en banc).




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       In his brief, Father does not discuss Section 2511(a). See Wirth v.

Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (holding that “[w]here an

appellate brief fails to . . . develop an issue in any . . . meaningful fashion

capable of review, that claim is waived.          It is not the obligation of an

appellate court to formulate appellant’s arguments for him.”) (internal

quotations omitted); see also Pa.R.A.P. 2119(a) (providing that appellate

briefs must contain “such discussion and citation of authorities as are

deemed pertinent”).          Therefore, we find that Father has waived any

challenge to the involuntary termination of his parental rights under Section

2511(a).4

       Even if Father had preserved this challenge, we would find that there

is competent evidence in the record to support the involuntary termination

of his parental rights under Subsection 2511(a)(2).        This Court has stated

that a parent is required to make diligent efforts toward the reasonably

prompt assumption of full parental responsibilities. In re A.L.D., 797 A.2d

326, 337 (Pa. Super. 2002).            A parent’s vow to cooperate, after a long

period of uncooperativeness regarding the necessity or availability of

services, may properly be rejected as untimely or disingenuous. Id. at 340.

____________________________________________


4
   Father also waived any challenge regarding the orphans’ court’s
consideration of an open adoption in this matter by his failure to develop any
argument concerning that doctrine. See Lackner v. Glosser, 892 A.2d 21,
29–30 (Pa. Super. 2006) (Appellate arguments that are not appropriately
developed are waived).



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     In Adoption of S.P., our Supreme Court instructed that:

        incarceration is a factor, and indeed can be a determinative
        factor, in a court’s conclusion that grounds for termination
        exist under § 2511(a)(2) where the repeated and continued
        incapacity of a parent due to incarceration has caused the
        child to be without essential parental care, control or
        subsistence and that the causes of the incapacity cannot or
        will not be remedied.

Adoption of S.P., 47 A.3d at 828.

     After re-visiting its decision in In re: R.I.S., 36 A.3d 567, 572 (Pa.

2011), regarding incarcerated parents, the Supreme Court stated:

        [W]e now definitively hold that incarceration, while not a
        litmus test for termination, can be determinative of the
        question of whether a parent is incapable of providing
        “essential parental care, control or subsistence” and the
        length of the remaining confinement can be considered as
        highly relevant to whether “the conditions and causes of the
        incapacity, abuse, neglect or refusal cannot or will not be
        remedied by the parent,” sufficient to provide grounds for
        termination pursuant to 23 Pa.C.S. § 2511(a)(2). [See In
        re:] E.A.P., 944 A.2d [79, 85 (Pa. Super. 2008)] (holding
        termination under § 2511(a)(2) supported by [the]
        mother’s repeated incarcerations and failure to be present
        for [the] child, which caused [the] child to be without
        essential care and subsistence for most of her life and which
        cannot be remedied despite [the] mother’s compliance with
        various prison programs). If a court finds grounds for
        termination under subsection (a)(2), a court must
        determine whether termination is in the best interests of the
        child, considering the developmental, physical, and
        emotional needs and welfare of the child pursuant to §
        2511(b). In this regard, orphans’ courts must carefully
        review the individual circumstances for every child to
        determine, inter alia, how a parent’s incarceration will factor
        into an assessment of the child’s best interest.

Adoption of S.P., 47 A.3d at 830–831 (some internal citations omitted).




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       Here, the orphans’ court found that due to Father’s extended period of

incarceration and the possibility that he will not be released on his minimum

date, and that he will be unable to provide proper parental care and control

even after he is released from incarceration, competent evidence supported

the involuntary termination of Father’s parental rights under Section

2511(a)(2). Orphans’ Court Memorandum, 5/12/15, at 19. Thus, we would

find that the competent evidence in the record supports the orphans’ court’s

decision and that the orphans’ court did not abuse its discretion in

terminating Father’s parental rights.   Adoption of S.P., 47 A.3d at 826–

827.

       Next, we review the termination of Father’s parental rights pursuant to

23 Pa.C.S. § 2511(b). Our Supreme Court has stated:

       [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. § 2511(b). The emotional needs and welfare of the child
       have been properly interpreted to include “intangibles such as
       love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
       791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa.
       1993)], this 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. In re K.M., 53 A.3d at
       791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

       Father asserts that Dr. Ryen’s expert testimony indicated Father has a

close, primary, secure bond with Child.      Father’s Brief at 24–25.   Father


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avers that Dr. Ryen testified that he was opposed to the involuntary

termination of Father’s rights and that such termination would be harmful to

Child. Id. at 25; N.T., 4/10/15, at 113, 115–116, 121.

     The orphans’ court summarized Dr. Ryen’s testimony as follows:

            Dr. Allen Ryen testified at the termination hearing [by
     telephone,] and his reports were admitted as exhibits (Exhibits
     #7 and #8). Dr. Ryen has been qualified as an expert regarding
     bonding and bonding issues numerous times in McKean County
     and many other counties in Northwestern Pennsylvania. He has
     extensive training and experience regarding childhood
     development and the effects of changes in custody and child
     dependency. He testified that there is a primary and secure
     bond between [Child] and . . . Father.           He observed the
     interaction between [Child] and Father during a visit at Father’s
     SCI [State Correctional Institution] facility. He described Father
     and [Child’s] interaction as “downright wonderful and
     heartwarming.” He concluded that it was in [Child’s] interests to
     have Father’s rights terminated as Father will be unavailable for
     an unknown and significant period of time; and, at some point,
     [Child] will “examine her rescue fantasy and find that it isn’t
     realistic.” He indicated that a child needs a positive and secure
     environment to develop in; and, [Child] has that type of
     environment with the [C.s]. However, he also testified that “I
     would certainly not support terminating contact and support with
     . . . Father.” He indicated that there are three options: 1) open
     adoption; 2) Subsidized Legal Custodianship; and, 3) involuntary
     termination of parental rights with no continued contact with
     Father. He testified that option 3, termination with no continued
     contact with Father: “is the last thing that I would want to see.”

Orphans’ Court Memorandum, 5/12/15, at 8–9.

     Dr. Ryen opined that Child’s bond with Father likely remained due to a

“rescue fantasy.”   N.T., 1/5/15, at 78.    He explained that such fantasies

exist in children where there is a disruption of the primary bond due to

incarceration of a parent or divorce. The Child forms a fantasy, as in this


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case, believing “my father is going to come home and we’re going to live

together happily ever after.”        Id. at 78–79.     Dr. Ryen clarified that the

rescue fantasy becomes part of the child’s security, and it helps the child “to

maintain a sense of intactness and stability and safety.” Id. at 79.

      Dr. Ryen testified that Father self-reported his diagnoses of borderline

personality   disorder,   bi-polar    affective   disorder   with   attention   deficit

disorder, a history of drug use, and a suicide attempt. N.T., 1/5/15, at 81.

The expert explained the significance of these mental illnesses and their

impact on parenting, as follows:

      [T]hese [illnesses] . . . all represent a risk to [Father’s] ability to
      parent a child, his ability to have a relationship with any human
      being for that matter. Um—you know a[n] . . . affective disorder
      untreated ah—has some very negative repercussions . . . upon
      the adjustment . . . of anybody who is going to be dependent on
      him. . . .

                                         * * *

            Personality Disorders on the other hand tend to be rather
      enduring.       They tend to be rather ah—resistant to
      treatment . . . .

                                       * * *

      [P]eople with Borderline Personality Disorders for example[,
      their] relationships tend to be characterized by you know
      instability and change. You know, having you know intense need
      with intense emotional swings and sometimes to a point of
      psychosis but, you know, they tend not to go away without an
      awful lot of very good treatment.

             What I’m saying in general is that there are a number of
      risk factors that [Father] shared with me you know each of them
      has implication for his stability into the future and you know
      combined or maybe multiplicative sorts of implications and I’m

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      simply concluding that his long term stability is—has a worst
      prognosis by virtue of these factors that [Father] shared with
      me.

N.T., 1/5/15, at 81–84.

      Dr. Ryen testified that while there is affection between Father and

Child, there also is great affection between Child and the C.s. N.T., 1/5/15,

at 76, 91–92. Dr. Ryen opined that he preferred Child in an open-adoption

situation; he also noted that Father realistically might not be able to assume

parental duties before Child reaches eighteen years of age.    Id. at 89–90,

100–103, 114–122.      Lastly, the expert recognized that the involuntary

termination of Father’s parental rights would provide permanency for Child.

Id. at 93.

      In conducting a bonding analysis, the orphans’ court is not required to

use expert testimony but may rely on the testimony of social workers and

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

Furthermore, it is appropriate to consider a child’s bond with the foster

parents, as well. T.S.M., 71 A.3d at 268. In T.S.M., our Supreme Court set

forth the process for evaluating the existence of a bond between a parent

and a child and reiterated the importance of the orphans’ court’s focus on

concerns of the quality of the attachment and the availability of an adoptive

home. The Supreme Court stated the following:

      [C]ontradictory considerations exist as to whether termination
      will benefit the needs and welfare of a child who has a strong but
      unhealthy bond to his biological parent, especially considering
      the existence or lack thereof of bonds to a pre-adoptive family.

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     As with dependency determinations, we emphasize that the law
     regarding termination of parental rights should not be applied
     mechanically but instead always with an eye to the best interests
     and the needs and welfare of the particular children involved.
     See, e.g., R.J.T., [9 A.3d 1179, 1190 (Pa. 2010)] (holding that
     statutory criteria of whether [the] child has been in care for
     fifteen of the prior twenty-two months should not be viewed as a
     “litmus test” but rather as merely one of many factors in
     considering goal change). Obviously, attention must be paid to
     the pain that inevitably results from breaking a child’s bond to a
     biological parent, even if that bond is unhealthy, and we must
     weigh that injury against the damage that bond may cause if left
     intact. Similarly, while termination of parental rights generally
     should not be granted unless adoptive parents are waiting to
     take a child into a safe and loving home, termination may be
     necessary for the child’s needs and welfare in cases where the
     child’s parental bond is impeding the search and placement with
     a permanent adoptive home.

                                     * * *

     [The Adoption and Safe Families Act of 1997, P.L. 105-89]
     ASFA[,] was enacted to combat the problem of foster care drift,
     where children . . . are shuttled from one foster home to
     another, waiting for their parents to demonstrate their ability to
     care for the children. See In re R.J.T., 9 A.3d at 1186; In re
     Adoption of S.E.G., [901 A.2d 1017, 1019 (Pa. 2006)]. This
     drift was the unfortunate byproduct of the system’s focus on
     reuniting children with their biological parents, even in situations
     where it was clear that the parents would be unable to parent in
     any reasonable period of time. Following ASFA, Pennsylvania
     adopted a dual focus of reunification and adoption, with the goal
     of finding permanency for children in less than two years, absent
     compelling reasons. See, 42 Pa.C.S. § 6301(b)(1); 42 Pa.C.S.
     § 6351(f)(9) (requiring courts to determine whether an agency
     has filed a termination of parental rights petition if the child has
     been in placement for fifteen of the last twenty-two months).

T.S.M., 71 A.3d at 268–269.

     The existence of a bond or attachment between parent and child will

not necessarily result in the denial of a termination petition. In re T.A.M.,


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33 A.3d 95, 103 (Pa. Super. 2011); In re K.K.R.-S., 958 A.2d 529, 535 (Pa.

Super. 2008). This Court will not prolong instability for children when it is

clear that their biological parents are unable to provide for their basic needs

in the near future. T.S.M., 71 A.3d at 270.

      Although he was not in favor of termination of Father’s parental rights,

Dr. Ryen testified, “Right now we’ve got a very young needy child who needs

to belong to somebody and something. She needs a personal and a family

identity that’s realistic on a daily . . . basis.” N.T., 1/5/15, at 118. Dr. Ryen

acknowledged that the orphans’ court “may not have a choice” because

termination of Father’s parental rights would provide Child with permanency.

Id. at 121.

      In the present matter, the orphans’ court adequately considered the

developmental, physical, and emotional needs of Child.               The court

thoroughly considered Child’s bond with Father along with the effect of

severing that bond.      The orphans’ court also provided an explanation

concerning why its termination decision was not based on matters outside of

Father’s control, including housing and lack of employment, as Father

claimed. Rather, the orphans’ court based its decision on Father’s current

incarceration and his inability to provide proper parental care and control

when released from incarceration. Orphans’ Court Memorandum, 5/12/15,

at 19. Although there was evidence of a bond between Child and Father, the




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court properly determined that it was in Child’s best interest to sever that

bond. Id.; In re: T.S.M., 71 A.3d at 268–269.

      Father posits that the instant case is distinguishable from In re

D.C.D., 105 A.3d 662 (Pa. 2014), and T.S.M., the cases upon which the

orphans’ court primarily relied.     Father also urges that these facts are

distinguishable from the facts in Adoption of S.P. We find no merit to this

argument. The orphans’ court properly relied on D.C.D. and Adoption of

S.P. to set forth our Supreme Court’s instructions regarding the involuntary

termination of parental rights of an incarcerated parent.          Likewise, the

orphans’ court’s reliance on T.S.M. in setting forth the High Court’s

guidance, when there is evidence of a bond between a child and a parent but

it is in the best interest of the child to sever that bond, was relevant.

      Finally, we reject Father’s suggestion that In re E.M. is apt herein.

Father’s Brief at 25. In E.M., the orphans’ court involuntarily terminated the

parental rights of a mentally retarded mother to her two sons pursuant to 23

Pa.C.S. § 2511(a)(2).     Our Supreme Court found that the psychological

evaluations recommended by the agency’s expert witness had not been

performed, and the bond between the mother and the children should have

been more fully explored. Thus, our Supreme Court reversed and remanded

the matter for a re-evaluation. E.M., 620 A.2d at 485.

      In the case sub judice, the orphans’ court found that Child loves

Father.   N.T., 4/10/15, at 141.    The orphans’ court also found that Child


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loves the C.s. Id. As we explained in Z.P., 994 A.2d at 1125, 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.” Indeed, we have stated

that it “is appropriate to rely on past behavior rather than future promises.”

In re J.L.C., 837 A.2d 1247, 1254 (Pa. Super. 2003).           A “parent’s basic

constitutional right to . . . the rearing of his 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 his or her potential in a permanent, healthy, safe

environment.”     In re B.,N.M., 856 A.2d 847, 856 (Pa. Super. 2004).

Because the orphans’ court’s 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, we affirm the orphans’ court’s order involuntarily

terminating Father’s parental rights.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2016




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