J-S16001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF Q.R.T., A MINOR :          IN THE SUPERIOR COURT OF
                                   :                PENNSYLVANIA
                                   :
APPEAL OF: K.R.                    :
                                   :               No. 1590 MDA 2014
                                   :

               Appeal from the Order Entered August 19, 2014
          In the Court of Common Pleas of Northumberland County
                 Orphans’ Court Division, at No(s): 67 - 2013

BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY PANELLA, J.
                                                  FILED MAY 08, 2015
      K.R. (Father) appeals the order of the Court of Common Pleas of

Northumberland County, entered August 19, 2014, that terminated his

parental rights to his daughter, Q.T. (Child).1 We affirm.

      The record supports the following recitation of the facts of this case.

Child was removed originally from the care and custody of her mother on

June 23, 2012, when Northumberland County Children and Youth Services

(CYS) received a General Protective Services referral that Child had been

hospitalized for injuries suffered when her mother, who was intoxicated at

the time, dropped her on a concrete surface.       Father was living in New

Jersey when this incident happened, and, when contacted by CYS, told the

agency he would return to Pennsylvania the next day. He never did. The




1
  The trial court terminated the parental rights of Child’s natural mother in a
separate proceeding. Mother did not appeal that termination.
J-S16001-15


trial court adjudicated Child dependent on July 10, 2012. She has remained

in the care and legal custody of CYS ever since.

     CYS filed its petition to terminate Father’s parental rights on December

13, 2013. The trial court held hearings on that petition on May 19, 2014,

and August 1, 2014.

     Child’s initial goal was to reunite with Father. Father’s family service

plan (FSP) goals were to obtain employment; maintain stable housing; prove

his ability to support Child financially; complete anger management classes;

and participate in drug and alcohol services until he was successfully

discharged.

     Father was incarcerated September 11, 2013, and, at the time of the

hearing on the termination of his parental rights, Father did not know when

he would be available as a permanent and stable resource for Child.       He

speculated that it might be some time in 2017.     As of the hearing in this

matter, Father had not provided CYS, or the trial court, any proof that he

had completed, or even started, any of the tasks in his FSP.

     Father had several visits with Child while incarcerated, but none

between August 2013 and May 2014 because he did not bother to complete

the necessary prison paperwork to permit the visits. The visits that occurred

did not go well.      Child cried uncontrollably, often got sick from the

experience, exhibited no awareness of who Father was, and there was no

evidence of any bond with him. Father has offered no financial or emotional



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J-S16001-15


support for Child and has had made no effort to contact Child’s foster

parents through the agency.

     Child has resided with and formed a strong bond with her pre-adoptive

foster family, with whom she has resided since August 2013.

     The trial court entered its decree terminating Father’s parental rights

pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5) and (8), and changing

Child’s goal to adoption on August 19, 2014. Father timely appealed.

     Our standard of review is as follows.

     In an appeal from an order terminating parental rights, our
     scope of review is comprehensive: we consider all the evidence
     presented as well as the trial court’s factual findings and legal
     conclusions. However, our standard of review is narrow: we will
     reverse the trial court’s order only if we conclude that the trial
     court abused its discretion, made an error of law, or lacked
     competent evidence to support its findings. The trial judge’s
     decision is entitled to the same deference as a jury verdict.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

     Further, we have stated:

           Where the hearing court’s findings are supported by
     competent evidence of record, we must affirm the hearing court
     even though the record could support an opposite result.
           We are bound by the findings of the trial court which have
     adequate support in the record so long as the findings do not
     evidence capricious disregard for competent and credible
     evidence. The trial court is free to believe all, part, or none of
     the evidence presented, and is likewise free to make all
     credibility determinations and resolve conflicts in the evidence.
     Though we are not bound by the trial court’s inferences and
     deductions, we may reject its conclusions only if they involve
     errors of law or are clearly unreasonable in light of the trial
     court’s sustainable findings.




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In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).

     We note our standard of review of a change of goal:

     When we review a trial court’s order to change the placement
     goal for a dependent child to adoption, our standard is abuse of
     discretion. In order to conclude that the trial court abused its
     discretion, we must determine that the court’s judgment was
     manifestly unreasonable, that the court did not apply the law, or
     that the court’s action was a result of partiality, prejudice, bias
     or ill will, as shown by the record.

In the Interest of S.G., 922 A.2d 943, 946 (Pa. Super. 2007) (citation

omitted).

     In order to affirm the termination of parental rights, this Court need

only agree with any one subsection of Section 2511(a). See In re B.L.W.,

843 A.2d 380, 384 (Pa. Super. 2004) (en banc).

     Requests to have a natural parent’s parental rights terminated are

governed by Section 2511, which provides, in pertinent part:

     § 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.

                                    ...

     (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


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J-S16001-15


      the basis of environmental factors such as inadequate housing,
      furnishings, income, clothing and medical care if found to be
      beyond the control of the parent. With respect to any petition
      filed pursuant to subsection (a)(1), (6) or (8), the court shall not
      consider any efforts by the parent to remedy the conditions
      described therein which are first initiated subsequent to the
      giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(a)(1)-(b).

      A party seeking termination of a parent’s rights bears the burden of

proving the grounds to so do by “clear and convincing evidence,” a standard

that requires evidence that is “so clear, direct, weighty, and convincing as to

enable the trier of fact to come to a clear conviction, without hesitance, of

the truth of the precise facts in issue.” In re T.F., 847 A.2d 738, 742 (Pa.

Super. 2004) (citations omitted). Further,

      [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 his or her
      physical and emotional needs.

In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (internal

citations omitted).

      To terminate parental rights pursuant to Section 2511(a)(1), the

person or agency seeking termination must demonstrate through clear and

convincing evidence that, for a period of at least six months prior to the

filing of the petition, the parent’s conduct demonstrates a settled purpose to

relinquish parental rights or that the parent has refused or failed to perform



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J-S16001-15


parental duties. See In Re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.

Super. 2003).

With respect to subsection 2511(a)(1), our Supreme Court has held:

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

Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1988).

Further,

      the trial court must consider the whole history of a given case
      and not mechanically apply the six-month statutory provision.
      The court must examine the individual circumstances of each
      case and consider all explanations offered by the parent facing
      termination of his or her parental rights, to determine if the
      evidence, in light of the totality of the circumstances, clearly
      warrants the involuntary termination.

In re N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).

      The Adoption Act provides that a trial court “shall give primary

consideration to the developmental, physical and emotional needs and

welfare of the child.”   23 Pa.C.S.A. § 2511(b).    The Act does not make

specific reference to an evaluation of the bond between parent and child but

our case law requires the evaluation of any such bond. However, this Court

has held that the trial court is not required by statute or precedent to order

a formal bonding evaluation performed by an expert. See In re K.K.R.-S.,

958 A.2d 529, 533 (Pa. Super. 2008).



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J-S16001-15


      In regard to incarcerated persons, our Supreme Court has stated:

             [I]ncarceration 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 [sic] the causes of the incapacity cannot or
      will not be remedied.

                                          ...

             [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). 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, trial 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.

In re Adoption of S.P., 616 Pa. 309, 328-329, 47 A.3d 817, 828, 830-831

(2012) (internal citations omitted).2

      Our examination of the record reveals that the trial court’s decision to

terminate Father’s parental rights under subections 2511(a)(1) and (b), and




2
  The Supreme Court cited its decision in In re: Adoption of McCray, 331
A.2d 652, 655 (1975), for the proposition that termination may be
appropriate for an incarcerated parent who has failed to perform his parental
duties for a six-month period of time. See 47 A.3d at 828.


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J-S16001-15


to change Child’s goal to adoption is supported by clear and convincing

evidence, and that there was no abuse of the trial court’s discretion.

      We have read the orphan courts’ opinion in this matter and we are

satisfied that it is thorough and complete. Accordingly, we affirm the order

on the basis of the thoughtful, concise, and well-written opinion of the

Honorable Anthony J. Rosini, that we adopt as our own.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/8/2015




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,,



         INRE:                                                  In The Court Of Common Pleas
         Q.T.,                                                  Northumberland County, Pa
                 A minor child
                                                                Orphan's Court Division

                                                                Adoptee No. 67 of2013

                                                                Children's Fast Track Appeal

                         OPINION
                                                                                                                      ..,·




                           K-
         Factual & Procedural Background                                                                         /.
                                                                                                                 I




                Appellant         R__        (Natural Father) has appealed this Court's order of
         August 19, 2014, terminating his parental rights. The order in question followed hearings
         conducted on May 19, 2014 and August 1, 20141 on Children & Youth Services(fhe
         Agency)'s Petition for Involuntary Termination of Parental Rights filed December 3,
         2013 in the matter of Q.T. (Minor Child), after which the Court entered a
         decreeterminating the parental rights of Natural Father with respect to Minor Child2•

                The minor child was originally removed from the care and custody of Natural
         Mother on June 23, 2012, following a General Protective Services (GPS) referral
         received the day prior alleging that the minor child had been hospitalized as a result of
         having been dropped onto a concrete surface during a period while the Natural Mother
         was intoxicated. · Natural Father was not present, as be was at that time residing in New
         Jersey. The minor child was unresponsive upon arrival at the hospital, and was
         eventually flown by medical helicopter to another medical facility. When contacted by
         Agency personnel, Natural Father told them that he would return to Pennsylvania the
         following day, however he did not do so. Thereafter, the Minor Child was adjudicated
         dependent on July 10, 2012 and remained in the legal and physical custody of The
         Agency.

                 Natural Father was ordered to obtain and maint.ain stable housing suitable for the
         minor child, to participate in visitation, to obtain and maintain employment and prove the
         ability to financially support the minor child, to participate in. and complete any and all
         recommended classes, to participate in drug and alcohol services until successfully
         discharged, and to attend anger management classes until successfully discharged.(Order
         of Adjudication and Disposition-Child Dependent, July 24, 2012).He has not been
         able to provide any proof that he complied with any of these directives nor has he
         demonstrated any ability to provide for the needs and welfare of the Minor Child .
     .
         1,The
           May.19 hearing.waspr.esided..over..hy th.e.Hon..Senio.rJ•      Harold F. Woelfel, Jr. The August 1
     hearing was presided over by the undersigned, who also entered the August 19 order.
     ~ Natur.al.Mothe.r~.paremal-..r~ :w.ere. also .involuntarily temunated with respect to the Minor Child by
     separate order on August 19, 20!4.



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    Issues Presented

      Natural Father sets forth the following in his Concise Statement of Matters
    Complained of on Appeal, filed 18 September 20143:

       1)      The Court committed an error of law in finding that the Agency had presented
               clear and convincing evidence that grounds for involuntary termination exist.
       2)      The Court committed an error of law in determining that the best interest of
               the Minor Child would be served by terminating the Natural Father's parental
               rights.


Standard & Scope of Review

       The Pennsylvania Supreme Court has set forth its scope and standard of review as
follows:

                   (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. Adoption of S.P., 616 Pa. 309, 47 A.3d 817
                   (Pa. 2012), citing In re: R.J.T., 608 Pa. 9, 9 A.3d 1179,
                   1190 (Pa. 2010).

Legal Reasoning


1)          The Agency Presented Clear And Convincing Evidence Of The Existence Of
            Grounds For Involuntary Termination

         The Agency established by clear and convincing evidence the Natural Father's
repeated failure to perform parental duties as well as his failure and incapacity to remedy
the situation which has left the Minor Child without essential parental care, control or
subsistence necessary for her physical and mental well-being. The father has been
incarcerated since September 11, 2013 and was denied parole in March of this year. At
this point he does not have a release date and his maximum release date is not until 2017.
It is clear that Natural Father cannot currently provide permanency for the Minor Child
and cannot point to a time certain when he will be able to do so.

3
    Notice of appeal :was~   uponthfl·President··Judge·father than upon the trial judge.




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         Natural Father does not have stable housing and does not know the date of his
 release.4 Natural Father has participated in visits with the minor child; however, he has
  been incarcerated for the majority of the Minor Child's life. His visits have taken place
  inside prison facilities. · Natural Father had no visits with the Minor Child from August of
  2013 until March of 2014 due to his failure to complete paperwork to permit visits in the
  institution in which he was held. Since the placement of the Minor Child, Natural Father
  participated in supervised visitation while housed at the Northumberland County Prison
  and at the Snyder County Prison prior to the filing of the petition (N.T., Involuntary
  Termination of Parental Rights, May 9, 2014, at p. 22-23). Natural Father has also
  participated in two (2) supervised visits with the Minor Child at SCI Rockview, one in
  March of2014 and one in April of 2014 (Id., at 52). Both of these visits took place after
· the filing of the· Petition for Involuntary Termination of Parental Rights. Caseworkers
  testified that the Minor Child would initially cry uncontrollably, often to the point of
  vomiting, when taken for visits with Natural Father. (Id., at 22-23. During later visits,
  this behavior subsided somewhat, but the caseworker testified that the Minor Child did
  not know who Natural Father was (Id., at 53). During visits with Natural Father, the
  Minor Child generally would cling to the caseworker and exhibit little or no bond with
  Natural Father (Fmal Decree, August 19, 2014).

         Natural Father has not been employed nor provided any financial support for the
 Minor Child since the Minor Child was adjudicated dependent and has been, as noted
 above, incarcerated almost continuously between that time and the present. Natural
 Father had indicated to Agency Personnel at some point that he was taking parenting
 classes at SCI Rockview (his location since November of 2013), however no proof or
 certification was ever provided either to The Agency or presented to the Court. Natural
 Father did complete a Substance Abuse Intervention program at Gaudenzia in April of
 2013 (N.T., Involuntary Termination of Parental Rights, May 9, 2014, at 66). Natural
 Father has not presented to the Court anything to show that he has completed the ordered
 anger management classes.

        Although Natural Father's current incapacity to remedy the situation is caused
primarily by hi~jncarceration this alone does not toll his obligation to take affirmative
steps to remedy the conditions. The Superior Court has held that a parent's incarceration
does not preclude termination of parental rights if the incarcerated parent fails to utilize
given resources and to take affirmative steps to support a parent-child relationship.In re
D.J.S., 737 A2d 283, 1999 Pa. Super. 214 (Pa. Super. 1999). Toe Pennsylvania Supreme
Court has held that while incarcerated, a parent is expected to utilize whatever resources
are available to him in order to foster a continuing close relationship with his children.
Adoption ofBaby Boy A. 517 A.2d 1244, 512 Pa 517 (Pa. 1986).

          Where the parent does not exercise reasonable firmness in "declining to yield to
  obstacles" his parental rights may be forfeited. In re A.L.D. 797 A.2d 326, 2002 Pa.
. Super.. 1.04. (P.a. .. Super~,,.2002).. .An.iacar.cmued parent's responsibilities are not tolled
},His.maximum tclease,datexis2017;·..be:wauoo.st,r«altly.,~ed·.parole-inMru:ch of this year (Final
Decree, August 19, 2014).



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during incarceration. The Court must inquire whether the parent utilized available
resources. to maintain a closer relationship with the child while he or she was in prison.
Id. at 106. A parent is expected to be steadfast in overcoming obstacles to maintaining
the parent-child relationship. In re Burns, 379 A.2d 535, 474 Pa. 615 (Pa. 1977).

       Similarly, relative to subsections (5) and (8) of 23 Pa.C.S.§251l(a), Natural
Father has not remedied the conditions leading to the removal of the Minor Child and
those conditions still exist. There is no indication that he will, or even can, remedy these
conditions within a reasonable amount of time.

       The Pennsylvania Supreme Court has made clear that, "incarceration is a factor,
and indeed can be a · determinative factor, in a court's conclusion that grounds for
termination exist under § 251l(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." In re Adoption ofS.P., 616 Pa. 309, 328-329, 47 A.3d 817, 2012 Pa. LEXIS
1168, 2012 WL 1764190 (Pa. 2012).

       The Supreme Court further pointed out that this standard has often been
misapplied relative to §251l(a) as a whole, and clarified its position relative to
incarceration of a natural parent by stating,

                [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)... [i]f 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 emotions needs and welfare of the child
                pursuant to §2511(b ) ..... In this regard, trial 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.
                Id., at 332.

       In this case the Natural Father has been incarcerated throughout the termination
proceedings.. llis ;v.isits . with .. the.child .have .been . Inconsistent, there was no evidence
presented that he has completed any of the court-ordered programs while incarcerated, he
has·not,providetM.itJ.anciaioSupport•,fur,the ;.Minor,-Ohi.ki,.1and,he,has made very little effort
to maintain contact with the child while incarcerated. He has never contacted the Minor


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Child's Foster Parents (N.T., Involuntary Termination of Parental Rights~ May 9,
2014, at p. 95),-and has only sent one-card, through a friend, to the Minor Child (Final
Decree, August 19, 2014).He is unable to provide a date on which he will be able to
fulfill his parental duties. The needs and welfare of the child cannot be put on hold
simply on the hope that the Natural Father will at some unknown date in the future be
capable of fulfilling his parental duties.

         As noted by our Supreme Court, a decision to terminate parental rights is never
 made lightly, nor without some sense of compassion for the parent, especially where it is
 based upon parental incapacity. However, the legislature has provided that a parent who
 is incapable of performing his duties is just as unfit as a parent who refuses to do so. In
re Adoption ofS.P.,47 A.3d'817, 616 Pa. 309(Pa. 2012).· In this case, such a finding was
justified by the facts clearly and convincingly presented at the termination hearings.


2)     The Court Correctly Determined That The Best Interests of the Minor Child
       Would Be Served By Terminating Parental Rights.

        Once a court determines that a parent's conduct warrants termination, the needs
and welfare of the Minor Child must then be examined to determine whether termination
of parental rights would be in the best interest of the Minor Child. In re. L.M, 923 A.2d
505, (Pa.Super. 2007).

         Here, the Court examined the existence and quality of the bond between Natural
 Father and the Minor Child and found that no bond exists. The Minor Child does not
 recognize Natural Father as her father (N.T., Involuntary Termination of Parental
 Rights, May 9, 2014, at p. 53). There is no evidence of any bond, and in the absence of
.such evidence, the Court reasonably inferred that no such bond exists between Natural
 Father and Minor Child.Further, the Minor Child has established a firm bond with her
 foster family, a family with whom she has lived since August of2013 and that is willing
 to provide permanency for the Minor Child (N.T., Involuntary Termination of
 Parental Rights, May 9, 2014, at p. 85, p. 92).


Conclusion

    For the foregoing reasons, the Appeal of Natural Father is without merit and should
be dismissed.


                                              BY THE COURT:




                                             5
