J-S18030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: Z.S.F.-M., A MINOR                        IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA

APPEAL OF: C.W., FATHER                          No. 2942 EDA 2014


            Appeal from the Order entered September 9, 2014,
           in the Court of Common Pleas of Philadelphia County,
             Family Court, at No(s): CP-51-AP-0000629-2012,
            CP-51-DP-0062820-2010, FID: 51-FN-471204-2009

BEFORE: BENDER, P.J.E., ALLEN, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED APRIL 02, 2015

     Appellant, C.W. (“Father”), appeals from the order involuntarily

terminating his parental rights to Z.S.F.-M. (“Child”) (born in May of 2008)

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

Child’s permanency goal to adoption pursuant to section 6351 of the

Juvenile Act, 42 Pa.C.S.A. § 6351.1 We affirm.

     On June 4, 2009, the parties first became known to the Department of

Human Services (“DHS”), as a result of a General Protective Services

(“GPS”) report alleging that Child was dirty and unkempt with an odor. The

report alleged that Child cried constantly and appeared to be disheveled.

The report further alleged that the family home where Child resided was

filthy, dirty, and infested with roaches, and that the home was structurally



1
  The parental rights of Child’s minor mother, T.F. (“Mother”), were
terminated on September 9, 2014. Mother is not a party to the
current appeal, nor did she file a separate appeal.
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unstable and appeared ready to collapse. A subsequent report alleged that

the residents of the home were engaged in drug activities.

      On January 14, 2010, an adjudicatory hearing was held for Child’s

minor Mother. The trial court adjudicated Mother, Child, and Child’s siblings

dependent, and committed them to the care of DHS. The trial court ordered

DHS to locate a mother/child placement for Mother and Child, and ordered

DHS to refer Mother to the Adolescent Initiative Center (“AIC”).      Father’s

identity and whereabouts were unknown to DHS.

      On June 7, 2010, DHS placed Child in care with a maternal aunt

through Children’s Choice, Inc. (“Children’s Choice”).       At a shelter care

hearing on June 8, 2010, the trial court specifically ordered Child to be

temporarily committed to DHS. On June 16, 2010, following an adjudicatory

hearing, the trial court ordered Mother to have weekly supervised visits, and

ordered Father, once he made himself known to DHS, to have weekly

supervised visits.

      On October 6, 2010, Father appeared for a permanency review. The

trial court ordered Child to remain committed to DHS.         On December 9,

2010, DHS held a Family Service Plan (“FSP”) meeting, which Mother and

Father did not attend. At a subsequent permanency review hearing on May

9, 2011, the trial court ordered Child to remain committed to DHS. At the

time of that hearing, Father’s whereabouts were unknown.        On November

28, 2011, another permanency review hearing was held, and Father was not


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present.   The trial court ordered DHS to implement the recommendations

from Mother’s Parenting Capacity Evaluation and to review the evaluation

with Mother.

     On January 26, 2012, following a permanency review hearing, the trial

court ordered Child to remain committed to DHS, and directed DHS to

conduct a Parent Locator Search for Father.     The trial court ordered that

Child be placed in a new, pre-adoptive home. On January 30, 2012, DHS

held an FSP meeting. The trial court directed that Father: (1) make himself

known to DHS; (2) complete a parenting class for teen parents; (3) attend

family therapy with Child if appropriate; (4) visit biweekly with Child; (5)

obtain suitable housing with operable utilities; and (6) obtain and maintain

employment.

     On November 16, 2012, DHS filed a petition to involuntarily terminate

Father’s parental rights to Child. On September 9, 2014, the trial court held

a hearing on the petition. At the hearing, Jennifer Kreplesky, a DHS social

worker; Shannon O’Malley, a Children’s Choice Supervisor; and Shavon

Joseph, a Children’s Choice caseworker, all testified. On September 9, 2014,

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

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

Child’s permanency goal.




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

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

(b). Father presents the following issue for our review:

      1. Whether the trial court committed reversible error when it
         involuntarily terminated [F]ather’s parental rights where such
         determination was not supported by clear and convincing
         evidence under the Adoption Act 23 Pa.C.S.A. § 2511(a)(1),
         (a)(2), (a)(5), and (a)(8) when [Father] contends [F]ather
         made progress towards working and meeting the FSP goals
         [?]

Father’s Brief at 2.2

      Our standard of review regarding orders terminating parental rights is

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 we 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.

In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, the

burden is upon the petitioner to prove by clear and convincing evidence that




2
   Father does not challenge § 2511(b) in his Statement of
Questions Presented. Father appears to have copied and pasted
his second Statement of Question Involved from the first one.
However, Father does challenge 2511(b) in the argument section
of his brief. See Father’s Brief 10-13.
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the asserted grounds for seeking the termination of parental rights are valid.

Id. at 806. We have stated:

      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 the truth of the precise facts in issue.

  In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

      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.   In re M.G., 855 A.2d 68, 73-74 (Pa.

Super. 2004). If competent evidence supports the trial court’s findings, we

will affirm, even if the record could also support the opposite result. In re

Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).         Additionally,

this Court “need only agree with [the trial court’s] decision as to any one

subsection in order to affirm the termination of parental rights.”     In re

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 581

Pa. 668, 863 A.2d 1141 (2004).

      In terminating Father’s parental rights, the trial court relied upon

Section 2511(a)(1) and (b) which provide:

      § 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:




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     (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
     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.

     We have explained this Court’s review of a challenge to the sufficiency

of the evidence to support the involuntary termination of a parent’s rights

pursuant to section 2511(a)(1) as follows:

           To satisfy the requirements of section 2511(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 addition,

         Section 2511 does not require that the parent
         demonstrate both a settled purpose of relinquishing
         parental claim to a child and refusal or failure to perform
         parental duties.   Accordingly, parental rights may be
         terminated pursuant to [s]ection 2511(a)(1) if the parent
         either demonstrates a settled purpose of relinquishing
         parental claim to a child or fails to perform parental
         duties.


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            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
            [s]ection 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations

omitted).

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

     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 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.


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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 omitted).

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

months leading up the filing of the Petition for Involuntary Termination,

[F]ather failed to perform any parental duties for the [C]hild.” Trial Court

Opinion, 11/12/14, at 4 (unpaginated).        The trial court also found that

“[Child] has been in care for over thirty-seven months.” Id. at 5. The trial

court’s findings are supported by the hearing testimony.         Ms. Kreplesky

testified that Father was not compliant with any of his FSP objectives. N.T.,

9/9/14, at 46.    Ms. Kreplesky testified that Father did not complete his

parenting classes.   She stated that Father “attended three sessions, then

Father was released for about three weeks, then he was re-incarcerated and

he never reengaged with parent [classes].” Id.       Ms. O’Malley testified that

outreach letters were sent to Father while he was incarcerated and when he

was released from incarceration.       Id. at 67.   Ms. O’Malley testified that

Father did not respond to any of the outreach. Id.


      We defer to a trial court’s determination of credibility, absent an abuse

of discretion, and discern no such abuse in the trial court crediting the

testimony of Ms. Kreplesky and Ms. O’Malley. In re M.G., 855 A.2d 68, 73-

74.   Our review of the record supports the trial court’s determination that

Father has failed or refused to perform parental duties as delineated in 23

Pa.C.S. § 2511(a)(1).     Accordingly, Father’s claim regarding clear and



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convincing evidence pursuant to 23 Pa.C.S. § 2511(a) is without merit. See

id.


      Next, although Father did not raise Section 2511(b) in his Statement

of Questions Presented, we review the termination of Father’s parental rights

relative to the needs and welfare of Child pursuant to 23 Pa.C.S.A. §

2511(b).    See In re C.L.G., 956 A.2d 999, 1009 (Pa.Super. 2008) (en

banc).   Pursuant to section 2511(b), the trial court’s inquiry is specifically

directed to a consideration of whether termination of parental rights would

best serve the developmental, physical and emotional needs of the child.

See In re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super. 2005), appeal

denied, 587 Pa. 705, 897 A.2d 1183 (2006).         “Intangibles such as love,

comfort, security, and stability are involved in the inquiry into the needs and

welfare of the child.”   Id. at 1287 (citation omitted).   We have instructed

that the court must also discern the nature and status of the parent-child

bond, with utmost attention to the effect on the child of permanently

severing that bond. See id.


      The trial court concluded that Child would not suffer any irreparable

emotional harm if Father’s parental rights were terminated.        Trial Court

Opinion, 11/12/14, at 6 (unpaginated) (citations omitted).      The trial court

found that “[Child] has had no contact with [F]ather since April 2012,” and

that “[Child] did not have an opportunity to bond with [F]ather due to

[F]ather’s repeated incarcerations and long periods of his whereabouts being

unknown.”    Id.   Ms. Kreplesky and Ms. O’Malley testified that there is no

parent-child bond between Child and Father, and that termination is in


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Child’s best interests. N.T., 9/9/14, at 52, 68. Ms. Kreplesky testified that

Father has only seen his son twice, and the second time he saw his son,

Father did not know who Child was. Id. at 53. Ms. Kreplesky also testified

that terminating Father’s parental rights would not cause any permanent

emotional harm to Child, and that terminating Father’s parental rights to

Child is in the best interest of Child.     Id. at 53.    Moreover, Ms. O’Malley

stated that, when Father first met Child, Child did not go toward Father, and

Child did not have an interest in even talking to Father. Id. at 68.

      Furthermore, the trial court found that Child has bonded with his foster

parents, and that “[Child] had a positive relationship with his foster parents

and expressed feelings of stability and consistency.”         Trial Court Opinion,

11/12/14, at 6. Ms. Kreplesky and Ms. Joseph testified that Child has been

in foster care for two and a half years, and has bonded with both his foster

parents and siblings.    N.T., 9/9/14, 14-17; 29.      Ms. Kreplesky stated that

Child refers to foster parents as “mom” and “dad,” and that foster parents

love Child. Id. at 17. Ms. Joseph testified that Child is “very, very happy to

be [with foster parents].” Id. at 29.

      Father testified that he received the outreach letters, and wanted to

have contact with Child, but did not follow through with DHS.            Id. at 71.

Father also testified that he is willing to try to be in Child’s life. Id. at 76.

      In sum, the trial court credited the testimony presented by DHS in

support of termination.       We defer to a trial court’s determination of

credibility, absent an abuse of discretion, and discern no such abuse in this

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case. See In re M.G., 855 A.2d 68, 73-74. To the extent evidence of a

bond between Child and Father is before this Court, the trial court did not

abuse its discretion in concluding that there was no bond between Child and

Father. See in re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008). The trial

court gave adequate consideration of the developmental, physical, and

emotional needs of Child in determining that Father’s parental rights should

be terminated pursuant to section 2511(b), and the record supports the trial

court’s best interest analysis. In re C.M.S. supra.

      Upon review, we affirm the order terminating Father’s parental rights

on the basis of section 2511(a)(1) and (b), and changing the permanency

goal for Child to adoption.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/2/2015




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