J-S23015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: G.F.W., A :             IN THE SUPERIOR COURT OF
MINOR                         :                  PENNSYLVANIA
                              :
                              :
APPEAL OF: S.N.C., FATHER     :
                              :
                              :
                              :
                              :             No. 2914 EDA 2015


             Appeal from the Decree entered August 25, 2015
           In the Court of Common Pleas of Philadelphia County
             Family Court at No(s): CP-51-AP-0000454-2015
                                    CP-51-DP-0000738-2013

BEFORE: PANELLA, J., OTT, J., and FITZGERALD*, J.

MEMORANDUM BY PANELLA, J.                              FILED JULY 06, 2016

      S.N.C. (“Father”) appeals from the decree entered on August 25,

2015, granting the petitions filed by the Philadelphia Department of Human

Services (“DHS”), seeking to involuntarily terminate his parental rights to his

dependent, minor child, G.F.W., a girl born January 2012 (“Child”), pursuant

to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and to

change Child’s permanency goal to adoption. Father is currently serving a

lengthy prison sentence for beating his four-month-old son to death. We

affirm.

      On July 13, 2013, DHS filed a petition to terminate Father’s parental

rights to Child and a petition to change Child’s permanency goal to adoption.


* Former Justice specially assigned to the Superior Court.
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The trial court held a hearing on both petitions on August 25, 2015. At the

hearing, DHS presented the testimony of DHS social worker, Gwen Ross.

Father testified on his own behalf.

      Child was born in January 2012, and Child’s sibling, S., was born in

January 2013. Child and S. shared the same birth parents. On April 9, 2013,

DHS received a Child Protective Services (“CPS”) report alleging that S. had

been taken to the Children’s Hospital of Philadelphia (“CHOP”) in cardiac

arrest and with catastrophic injuries. S.’s abdominal organs had been

crushed and his abdomen was full of blood. S. had fractures of both

clavicles, and had sustained numerous rib fractures in various stages of

healing. S. also had a lacerated liver and injuries to his spleen. S. was

certified as a near fatality. The report also alleged that Child and three of his

siblings were in the waiting room of the hospital and that Mother and Father

refused to have them medically evaluated. On April 10, 2013, S. died.

      That same day, DHS also received a CPS report alleging that Child had

been evaluated at CHOP, and had multiple fractures in various stages of

healing. Child also had a possible old right tibia fracture. Mother and Father

could not explain Child’s injuries. That same day, DHS obtained an Order of

Protective Custody (“OPC”) for Child.

      A shelter care hearing was held on April 12, 2013, and the trial court

ordered that Child be temporarily committed to DHS. On April 13, 2013,

Father was arrested for the death of S. He was later convicted of third


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degree murder, involuntary manslaughter, and endangering the welfare of

children and sentenced to twenty to forty years at a state correctional

institution.1

      On November 18, 2013, an adjudicatory hearing was held. Child was

adjudicated dependent and committed to the care and custody of DHS. The

case was listed on a regular basis before the trial court for the purpose of

determining and reviewing the permanency plan of Child. Child has been in

foster care for approximately two years and has been placed in three foster

homes.

      As noted, on August 25, 2015, a termination of parental rights hearing

for Child was held. Following the hearing, the trial court entered a decree

terminating Father’s parental rights pursuant to § 2511(a)(1), (2), (5), (8),

and (b) of the Adoption Act, and an order changing Child’s permanency goal

to adoption pursuant to § 6351 of the Juvenile Act.

      Father timely appealed. In his brief on appeal, Father raises the

following issues:

      1. Whether the [t]rial [c]ourt erred by terminating the parental
      rights of Appellant, Father, under 23 Pa.C.S.A. § 2511
      subsections (a)(1), (a)(2), (a)(5) and (a)(8)?

      2. Whether the [t]rial [c]ourt erred by finding, under 23
      Pa.C.S.A. § 2511(b), that termination of Appellant’s parental
      rights best serves [Child’s] developmental, physical and
      emotional needs and welfare?

1
  This Court recently affirmed Father’s judgment of sentence. To keep the
parties anonymous in this filing we decline to provide a citation to the
memorandum decision.
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Father’s Brief, at 4.2

      Initially, we review the termination decree according 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. If the factual findings are
      supported, appellate courts review to determine if the trial court
      made an error of law or abused its discretion. As has been often
      stated, an abuse of discretion does not result merely because
      the reviewing court might have reached a different conclusion.
      Instead, a decision may be reversed for an abuse of discretion
      only upon demonstration of manifest unreasonableness,
      partiality, prejudice, bias, or ill-will.

      [T]here 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. 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


2
  Father waived any challenge concerning the trial court order changing
Child’s permanency goal from reunification to adoption, pursuant to the
Juvenile Act, 42 Pa.C.S.A. § 6351, by failing to include this issue in his
concise statement of matters complained of and statement of questions
involved portion of his brief. See Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (finding that an
appellant waives issues that are not raised in both his concise statement of
errors complained of on appeal and the statement of questions involved in
his or her brief on appeal).
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      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 S.P., 47 A.3d 817, 826-827 (Pa. 2012) (citations

omitted).

      Termination of parental rights is governed by § 2511 of the Adoption

Act, which requires a bifurcated analysis.

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating
      parental rights. Initially, 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
      paid to the effect on the child of permanently severing any such
      bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S.A. §

2511). The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted statutory grounds for seeking the termination of

parental rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super.

2009).

      Instantly, the decree terminated Father’s parental rights pursuant to §

2511(a)(1), (2), (5), (8), and (b). This Court must agree with only one

subsection, in addition to § 2511(b), in order to affirm the termination of

parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

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banc). Herein, we review the decree pursuant to § 2511(a)(1) and (b),

which provide as follows:

      (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 parents by conduct continuing for a period of at
         least six months immediately preceeding the filing of this
         petition either have evidenced a settled purpose of
         relinquishing parental claim to said children or have
         refused or failed to perform parental duties.

         ...

      (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.

      With respect to subsection (a)(1), “the moving party must produce

clear and convincing evidence of conduct, sustained for at least the six

months prior to the filing of the termination petition, which reveals a settled

intent to relinquish parental claim to a child or a refusal or failure to perform

parental duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing

In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). Further,

      [o]nce the    evidence establishes a failure to perform parental
      duties or a   settled purpose of relinquishing parental rights, the
      court must    engage in three lines of inquiry: (1) the parent’s
      explanation   for his or her conduct; (2) the post-abandonment

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       contact between parent and child; and (3) consideration of the
       effect of termination of parental rights on the child pursuant to
       Section 2511(b).

Id. (quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa.

1998)).

       Regarding the definition of “parental duties,” this Court has explained

that

       [t]here 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 or her
       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 . . . her physical and emotional
       needs.

In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).



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     In In re Adoption of S.P., supra, our Supreme Court discussed In

re Adoption of McCray, 331 A.2d 652 (Pa. 1975), a case wherein the

Court considered the issue of the termination of parental rights of

incarcerated persons involving abandonment, which is currently codified at §

2511(a)(1). The S.P. Court stated:

     Applying in McCray the provision for termination of parental
     rights based upon abandonment, now codified as § 2511(a)(1),
     we noted that a parent “has an affirmative duty to love, protect
     and support his child and to make an effort to maintain
     communication and association with that child.” Id. at 655. We
     observed that the father’s incarceration made his performance of
     this duty “more difficult.” Id.

47 A.3d at 828. The S.P. Court continued:

     [A] parent’s absence and/or failure to support due to
     incarceration is not conclusive on the issue of abandonment.
     Nevertheless, we are not willing to completely toll a parent’s
     responsibilities during his or her incarceration. Rather, we must
     inquire whether the parent has utilized those resources at his or
     her command while in prison in continuing a close relationship
     with the child. Where the parent does not exercise reasonable
     firmness in declining to yield to obstacles, his other rights may
     be forfeited.

Id. (citing McCray, 331 A.2d at 655).

     In this case, Father’s history with Child is well documented in the

record. (And he brutally murdered his four-month-old son.) Father’s

parenting skills and concern as a parent are minimal and he has not

managed to finish his reunification plan over a period of six months. None of

the objectives in Father’s plan has been completed. The trial court found

that, until Father completes the plan, success cannot be declared, and that


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the importance of the service plan and the goals it identifies for Child cannot

be overemphasized. See In re J.S.W., 651 A.2d 167 (Pa. Super. 1994).

      The trial court found it clear from the record that, for a period of six

months leading up to the filing of the termination petition Father has

undertaken no efforts to attempt to maintain any sort of consistent

involvement with the Child, either before or during his incarceration, and

failed or refused to perform parental duties for Child. Father himself testified

that he does not have a relationship with Child.

      In addition, DHS did not arrange visitation between Father and Child

due to the young age of Child and the fact that Father was ordered to stay

away from Child until she reaches the age of maturity. The order was aptly

issued as part of Father’s sentence for the murder of S.

      Child has been in foster care for twenty-two months, and testimony

established that Child is in a safe environment where her needs are being

met. Thus, after a careful review of the record, we find no merit to Father’s

argument concerning § 2511(a)(1).

      Next, in reviewing the evidence in support of termination under section

2511(b), our Supreme Court recently stated as follows:

             [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
      “[i]ntangibles 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

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      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).

      In reviewing the case, the trial court found that Father cannot care for

the Child’s needs because he still has serious problems which have not been

resolved, and he has no parental relationship with Child. (And one cannot

forget that he is serving a very lengthy prison sentence at a state

correctional institution for infanticide.)

      With regard to section 2511(b), the evidence reveals that Father does

not have a strong bond with the Child. Foster parents have taken care of all

of Child’s needs, and the DHS caseworker testified that, at the time of the

hearing, Child was about to be placed in a pre-adoptive home with the

agency. The trial court found that there is no evidence that Child would be

adversely affected if her relationship with Father is severed.

      Competent evidence in the record shows Father failed to “exhibit [the]

bilateral relationship which emanates from the parent[’s] willingness to learn

appropriate parenting . . . .” In re K.K.R.S., 958 A.2d 529, 534 (Pa. Super.

2008). He did not put himself in a position to assume daily parenting

responsibilities so that he could develop a real bond with the Child. See In

re J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003).




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      Although Father may love the Child and desire an opportunity to serve

as her father, a parent’s own feelings of love and affection for a child, alone,

will not preclude termination of parental rights. See In re Z.P., 994 A.2d

1108, 1121 (Pa. Super. 2010). 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.” In Re Z.S.W., 946 A.2d 726, 732 (Pa. Super.

2008) (citations omitted). Rather, a parent’s basic constitutional right to the

custody and rearing of her child is converted, upon the failure to fulfill his

parental duties, to the child’s right to have proper parental care. See In re

Z.P., 994 A.2d at 1120.

      The failure to terminate Father’s parental rights would condemn Child

to a life in foster care with no possibility of obtaining a permanent and stable

home. Based on the foregoing evidence, which we have reviewed in

accordance with the relevant statutory and case law, we conclude that the

trial court did not abuse its discretion in involuntarily terminating Father’s

parental rights pursuant to § 2511(b).

      Accordingly, we affirm the decree terminating Father’s parental rights

to the Child pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b), and changing

Child’s permanency goal to adoption.

      Decree affirmed.

      Justice Fitzgerald joins the memorandum.

      Judge Ott concurs in the result.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/6/2016




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