J-S17045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF P.J., MINOR CHILD :             IN THE SUPERIOR COURT OF
                                     :                  PENNSYLVANIA
                                     :
                                     :
APPEAL OF: D.A., FATHER              :                 No. 1949 WDA 2014

                    Appeal from the Order October 29, 2014
              In the Court of Common Pleas of Washington County
                      Orphans’ Court at No(s): 63-14-226


BEFORE: GANTMAN, P. J., SHOGAN, J., AND FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 1, 2015

        Appellant, D.A. (“Father”), appeals from the order entered in the

Washington County Court of Common Pleas, which involuntarily terminated

his parental rights to his minor child, P.J. (“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, Child

was adjudicated dependent on June 19, 2012.             On February 21, 2014,

Washington 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 September 5, 2014. On October 29, 2014, the

court entered an order involuntarily terminating Father’s parental rights to

Child. Father filed a timely notice of appeal on November 26, 2014, along

1
    The petition also sought to terminate the parental rights of M.R.
(“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 July 22,
2014.
___________________________

*Former Justice specially assigned to the Superior Court.
J-S17045-15

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 THE TRIAL COURT ERRED IN TERMINATING
         [FATHER’S] PARENTAL RIGHTS PURSUANT TO SECTIONS
         2511(a)(1) and (2) OF THE ADOPTION ACT.

         WHETHER THE TRIAL COURT ERRED IN FINDING THAT
         THE TERMINATION OF [FATHER’S] PARENTAL RIGHTS
         SERVED THE CHILD’S NEEDS AND WELFARE UNDER
         SECTION 2511(b) OF THE ADOPTION ACT.

(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
         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,

                                     -2-
J-S17045-15

        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:

              (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.

              (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
           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

                                     -3-
J-S17045-15

            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)(1)-(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

certain irreducible minimum requirements of care that parents must provide


                                     -4-
J-S17045-15

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
        does not, in itself, provide grounds for the termination of
        parental rights. However, a parent’s responsibilities are

                                    -5-
J-S17045-15

         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 well-reasoned opinion of the Honorable Katherine B.

Emery, we conclude Father’s issues merit no relief. The trial court opinion

comprehensively    discusses   and   properly   disposes   of   the   questions

presented. (See Trial Court Opinion, filed 12/17/14, at 5-8) (finding: Father

never provided primary or even occasional parental care to Child; Father has

been incarcerated for most of Child’s life; Father was briefly out of jail in

August 2013, and visit was arranged, but Father did not appear; Father

sporadically participated in juvenile dependency hearings via telephone or

video conferencing; Father routinely violated his parole, resulting in

numerous penalties; Father failed to make significant efforts to treat his

drug and alcohol addictions; Father completed one parenting course and

several drug treatment programs but did not complete mental health


                                     -6-
J-S17045-15

treatment   and    evaluation   or   anger   management      programs;    while

incarcerated, Father saw Child only once, after petition for termination of

parental rights had already been filed; Father was released from jail in

August 2014; Father testified he is not ready to assume custody of Child but

instead would like Child to live with Father’s parents for initial period of six

months; Child’s foster family is attentive to needs of Child, and Child has

progressed significantly in foster home; Child is very close with sister, who

also resides in foster home; Child demonstrates no particular attachment to

Father outside of their visits; Child would experience little to no negative

effect from severance of parental relationship; since his release from prison,

Father has had no steady source of legitimate income; Father failed to make

significant efforts to achieve financial and personal stability; CYS proved by

clear and convincing evidence that Father’s instability and continued

involvement in use and/or sale of illegal drugs has caused Child to be

without essential parental care, control, and subsistence necessary for

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.

      Order affirmed.




                                     -7-
J-S17045-15

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/1/2015




                          -8-
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Copies: Joyce Hatfield-Wise, Esq.; Tamora Reese, Esq.; MariAnn Hathaway, Esq.

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ADOPTION OF:                                  )                                                           ...... ...

                                              )
P.J.,                                         )          N0 .. 63-14-226
                                              )
(minor child)                                 )

Emery, J.                                                                    December 17, 2014


                         OPINION PURSUANT TO PA. R.A.P. 1925 (a}


        This case came before the Court on a Petition for the Involuntary Termination of Parental

Rights filed by Washington County Children and Youth Social Services Agency (CYS). The

petition, filed on February 21, 2014, sought to terminate the parental rights of   D. It. (~f~th,e,;··),

natural father to the child, P.J. After several continuances, the hearing was held on September 5,

2014. The Father was present and represented by counsel. The child was represented by a

Guardian ad Litem appointed by the Court. Suggested Findings of Fact and Conclusions of Law

were submitted to the Court on behalf of CYS and the Father; the Guardian ad Litem submitted a

written position statement. The Court granted the Petition on October 29, 2014 and terminated

the Father's rights to P.J. This timely appeal ensued.

I.      FACTS

         Feith.ft'    is the biological father of P.J., who was born on January 11, 2006, age 8.

The biological mother is · M.   J2.. ,        whose parental rights were terminated on July 22,

2014. The child was first adjudicated dependent on November 13, 2007; she was placed in foster
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care from September 9, 2007 until March 3, 2009, when she was returned to the home of her

mother. (Exhibit 1 Orders of November 13, 2007 and March 3, 2009; T.T. p. 7) The Father was

incarcerated during the eighteen month period of placement. (Exhibit 1; Order of March 3, 2009;

T.T. p. 8) The case was subsequently closed. CYS again became involved with the family in

2012. The child was placed in emergency shelter care on May 7, 2012 when the Pennsylvania

State of Police took protective custody of the child after the police arrested the Mother and her

husband for domestic violence and Mother tested positive for cocaine. (Exhibit 1 - Court Order

May 7, 2012). The child was adjudicated dependent on June 19, 2012 and has remained in foster

care since. At the time of the shelter hearing, the Father was incarcerated. (Exhibit 1 - Court

Order May 7, 2012). Since the child's placement in May of 2012, Father has been out of jail

only for a few months.

       Father's criminal history centers on drugs; the Father has multiple convictions for

misdemeanor drug charges and one felony for the sale of cocaine and a felony escape conviction

for failure to returnto a halfway house. (T.T. pp. 32-41; Exhibit 3) Father has lacked

compliance with his parole, resulting in numerous parole violation penalties. Father did not visit

with the child from the date of placement in May of2012 until July 27, 2014, when a visit

occurred at the Allegheny County Jail. (T.T. p. 27) He was briefly out of jail in August of 2013

and a visit was arranged but he did not appear. (T.T. pp. 9, 49) The Father sporadically

participated in the juvenile dependency hearings via telephone or video conferencing. (Exhibit 1)

The Father was ordered by Juvenile Court, upon his release, to complete a drug and alcohol

evaluation and follow through with treatment, to begin visits with his daughter and to obtain

appropriate housing. (Exhibit 1; Court Orders June 19, 2012; October 15, 2013). Father was

also ordered to complete parenting classes and anger management. The Father did complete a




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parenting program entitled Inside Out Dad Parenting Program while in the Allegheny County

Jail. (Exhibit A; T.T. p. 58) Father has participated in numerous drug treatment programs; he has

not completed mental health treatment and evaluation and anger management. (T.T. pp. 15, 58)

The Father was released from jail in August of 2014. He has had supervised visitation with the

child since then.

        The child is in the third grade. She has exhibited significant behavioral problems and

mental health issues in the past. She currently is receiving mental health treatment including

mobile therapy, case management and counseling and school support, including wrap around

services of a TSS Worker. (T.T. pp. 14, 110) She was placed in her current home in February

2014; it was the sixth placement since she was removed from her mother's care in May of 2012.

(T.T. p. 96) Her behaviors have improved while in this home. Her sister A.K., age seven, is also

placed in this home. P.J. and her sister have a positive and close relationship. (T.T. p. 13) The

foster parents desire to adopt both P.J. and A.K. (T.T. p. 14)

II.     STANDARD OF REVIEW

        In order to grant the Petition for Involuntary Termination of Parental Rights, the Court

must find that the moving party provides a clear and convincing evidence of one of the grounds

enumerated in the petition. In re: J.D.W.M., 810 A.2d 688 (Pa. Super. 2002). The clear and

convincing evidence standard 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. Id.; In Re: Julissa 0., 746 A.2d 1137 (Pa. Super. 2002). The petition

alleged that the Father's rights should be terminated pursuant to sections 1 and 2 of §2511 of the

Adoption Act enumerated as follows:




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        (1)     A parent, by conduct continued 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.

        (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.

23 Pa. C.S.A. 2511 (a) (1) and (2)

       The Court's examination is a two part test. The Court must determine if CYS has

established by clear and convincing evidence if the Father's conduct satisfies any of the grounds

delineated in §2511 (a) (1) and (2). If so, then the Court must determine, pursuant to §2511 (b)

that the termination of the parental rights will best serve the needs and welfare of the child.

III.   ISSUES ON APPEAL

       The Appellant asserts in his Statements of Matters Complained of on Appeal that "the

trial court committed an error of law and/or abuse of discretion ... in terminating Natural

Father's rights to his minor child pursuant to Section 251 l(a)(l)(2)(5) and (8) of the Adoption

and in finding the termination of the Natural Father's parental rights to his minor child best

served the child's needs and welfare under Section 251 l(b) of the Adoption Act." (Record

No.     ) The Court will first note that the Petition seeks to terminate Appellant's rights pursuant

to Section (1) and (2) and NOT (5) and (8) as claimed in the Concise Statement. As the issues

on appeal asserted by the Appellant are general in nature, the Court sets forth its Rationale for




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the decision as a full and complete response to the Appellant's Statement of Matters Complained

of on Appeal.

IV.    RATIONALE

        The Father has been incarcerated throughout most of the child's life. It is well settled

that incarceration, in of itself, is not grounds for termination; however, the duties and

responsibilities of a parent are not tolled during incarceration.   In re: J.I.R, 808 A.2d 934 (Pa.

Super. 2002). An incarcerated father is expected to utilize all resources available to him to

maintain a relationship with his child. In re: C.S., 761 A.2d 1197 (Pa. Super. 2000). Pursuant to

§2511 (a) (2), the question before the Court is whether CYS has established by clear and

convincing evidence that the repeated and continued incapacity, neglect or refusal of the Father

has caused the child to be without essential parental care necessary for her well-being, and the

conditions and causes of the neglect or refusal cannot or will not be remedied by the Father. The

Father has never provided primary parental care to this child, nor has he provided even

occasional parental care. The Father has been incarcerated for most of the child's life. Although

he was out of prison at the time of the hearing, the Father stated that he is still not ready to

assume custody of his daughter but rather wants her to be placed with his mother and he could

have regular contact with her. (T.T. p. S 1) The Father is not currently in a drug and alcohol

treatment program. He has been in both in-patient, out-patient and prison-based treatment

programs in the past but is not in a program at this time. Father was previously receiving Social

Security Disability and is seeking to have it reinstated since his release from prison. The

Father's instability, not having a residence and employment, throughout the child's life and the

Father's continued involvement in the use and/or sale of illegal drugs has caused this child to be

without her Father's care. Those conditions and causes have not yet been remedied and they are




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not likely to be remedied in a reasonable period of time. The child has been in foster care for

two and one-half years. As expressed by the Pennsylvania Supreme Court, there is no simple

definition of parental duties. They have defined parental duty as follows: "Parenting 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 merely passive interest in the

development of the child ... parental obligation is a positive duty which requires affirmative

performance; ...     parental duty requires that a parent "exert himself to take and maintain a place

of importance in the child's life." In Re: Bums, 474 Pa. 615, 624, 379 A.2d 535, 540 (1977); In

Re: B .•N.M., supra. The Father has simply not performed any parental duty except that he loves

the child. But she needs and deserves more. CYS has met its burden of proof in proving §2511

(a) (2).

           Pursuant to §2511 (a) (1), the question before the Court is whether CVS presented clear

and convincing evidence that the Father, during the six month period prior to the filing of the

petition on February 21, 2014, has failed to perform his parental duty or evidenced a settled

purpose of relinquishing his parental rights. The Agency does not have to prove that Father has

evidenced both failure to perform parental duties and evidence a settled purpose of relinquishing

his rights; one of these grounds is sufficient. In Re: C.M.S., (1), 832 A.2d 457 (Pa. Super. 2003).

Similar to the analysis set forth above, the Court finds that the Father has failed to perform his

parental duties. During the six months prior to filing of the TPR Petition on February 21, 2014,

the Father was incarcerated but did not request any visits at the jail. The Father did not request

visitation until after the filing of the petition. While the Father attempted to send cards to the

child, the letters were not received. The Father never petitioned the dependency court to insure

that he could maintain contact. Father's explanation for his lack of involvement was that he




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believed his mother was in contact with both CYS and the child's Mother and he was of the

understanding that the child was going to be returned to her mother and that he did not need to

do anything. In fact, his Mother was not visiting with the child. (T.T. p. 112) Being a parent

requires affirmative action. "Parents are required to make diligent efforts toward the reasonably

prompt assumption of full parental responsibilities."   In the Interest of A.L.D., 797 A.2d 326 (Pa.

Super. 2002). The Father has not made diligent efforts. The Court finds that CYS has met its

burden and established §2511 (a) (1) that the Father's actions has caused the child to be without

parental care and the conditions and causes will not be remedied.

        In addition to establishing the grounds for termination in§ (1) or (2) of §2511 (a), CYS

must also establish that the child's needs and interests will be best served by termination of the

Father's parental rights. In re: LG., 939 A.2d 950, 2007 Pa. Super. 394. The Court must "give

primary consideration to the developmental, physical, and emotional needs and welfare of the

child." 23 Pa. C.S.A. §2511 (b). The Court must consider the intangibles oflove, comfort,

security and stability and must probe the nature of the parent-child bond and the effects of the

severance of that bond. In re: C.M.S .• II, 84 A.2d 1284, 2005 Pa. Super. 340. The child resides

with her sister A.K. in a pre-adoptive home. While A.K. is not Father's biological child, he

considers her to be his child as well and recognizes that the two girls should remain together. (T.

T. pp. 43,56) The Mother's rights have already been terminated. (T.T. p. 6) The child desires to

remain in her current placement. (T.T. p. 98) The child enjoys seeing her Father but that alone is

not evidence of a bond. The child has referred to at least three people as Daddy; those persons

are her Father and two other men who had relationships with the Mother. (T.T. pp. 17, 100) The

child doesn't ask about her Father nor has she expressed, outside of the visits, any interest in

him. The Pennsylvania Superior Court has held "the mere existence of an emotional bond does




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               not preclude the termination of parental rights." In the Interest ofK.M., 53 A.3d 781, 791 (Pa.

               Super. 2012). The Court Appointed Special Advocate (GASA), Marilyn Montecalvo, opined

               that a bond exists between the Father and child but it is not a significant one. (T.T. p. 100) The

               CASA supported the termination of parental rights petition. (Exhibit 4) The child recognizes her

               Father and recognizes others as a Father, or as a father figure. She has had very limited contact

               with him throughout her life. The caseworker opined that there was no bond in existence

               between Father and child; the child merely enjoys a friendly relationship with him. (T.T. p. 17-

               18) Lastly and importantly, the Guardian Ad Litem supported the termination, informing the

               Court that the child has expressed a desire to remain in the current placement and that remaining

               there and being adopted is in her best interest. (Position of Guardian Ad Litem filed October 29,

               2014) The Court found that the bond between Father and child is not a strong or meaningful

               one for the child and she will experience little or no negative or detrimental effects by severing

               the parental relationship.

                       In conclusion, the evidence established, by a clear and convincing standard, that the

               Father failed to perform parental duties for at least six months (§1), that the Father showed a

               repeated and continued incapacity or refusal which has caused the child to be without essential

               parental care, control, or subsistence necessary for her physical and mental well-being, and that

               those conditions and causes of the incapacity, abuse, neglect, or refusal cannot or will not be

               remedied by the Father (§2). The evidence also established by a clear and convincing standard

               that the best interests of the child would be served by this termination. Therefore, the Court

               granted the Petition for the Involuntary Termination of the Parental Rights of the Father,   D.A.
                    , to the child, P .J.




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         IV.   CONCLUSION

               The Court's Opinion and Final Decree of October 29, 2014 should be affirmed.




                                                          BY THE COURT:




                                                     9
