J.   S37043/19


NON-PRECEDENTIAL DECISION            - SEE SUPERIOR COURT I.O.P.         65.37
IN THE INTEREST OF: S.K., A MINOR        :     IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

APPEAL OF: A.K., FATHER                              No. 501 EDA 2019


                 Appeal from the Order Dated January 7, 2019,
             in the Court of Common Pleas of Philadelphia County
          Domestic Relations Division at No. CP-51-DP-0002866-2017



IN THE INTEREST OF: S.G.R.K.,                  IN THE SUPERIOR COURT OF
A MINOR                                              PENNSYLVANIA

APPEAL OF: A.K., FATHER                              No. 503 EDA 2019


               Appeal from the Decree Entered January 7, 2019,
             in the Court of Common Pleas of Philadelphia County
          Domestic Relations Division at No. CP-51-AP-0000724-2018


BEFORE:    BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED AUGUST 12, 2019

       A.K. ("Father") appeals from the January 7, 2019 decree entered in the

Court of Common Pleas of Philadelphia County, Domestic Relations Division,

involuntarily terminating his parental rights to his dependent child, S.K., male

child, born in October of 2017 ("Child"), pursuant to the Adoption Act,
J.   S37043/19

23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8) and (b).1 After careful review, we

affirm.

       The trial court set forth the following:

             On October 24, 2017, the Child became known to the
             Department of Human Services ("DHS") when DHS
             received a General Protective Services ("GPS") report,
             which alleged that Child's mother ("Mother")[2] tested
             positive for marijuana and phencyclidine ("PCP") at
             Child's birth. On October 27, 2017, DHS obtained an
             Order for Protective Custody ("OPC") for Child and
             placed Child with his maternal aunt where he currently
             remains. On November 8, 2017, following a hearing,
             Child was adjudicated dependent. On August 22,
             2018, a DNA paternity test report was issued by the
             DNA Diagnostic Center per Court's Order, which
             indicated paternity as to Father.         Father was
             incarcerated when Child was born. Father was not
             incarcerated at the time of the hearing. Father has a
             long criminal history. In February of 2001, Father was
             adjudicated delinquent on felony sexual assault
             charges. O[n] March 5, 2008, Father was adjudicated
             delinquent on drug possession charges. On March 5,

1 The record reflects that Father filed a timely notice of appeal of the decree
terminating his parental rights to Child at No. CP-51-AP-0000724-2018, which
this court docketed at No. 503 EDA 2019. Father also filed a timely notice of
appeal of the order changing the goal to adoption at No. CP-51-DP-0002866-
2017, which this court docketed at No. 501 EDA 2019. By order entered
February 25, 2019, this court consolidated the appeals sua sponte pursuant
to Pa.R.A.P. 513. (Per curiam order, 2/25/19.) In his brief to this court,
however, Father does not challenge the goal -change order.

We also note that the trial court appointed a guardian ad /item to represent
Child's best interest. On the date of the termination hearing, Child was
14 months old. Therefore, separate legal representation was not required
because Child was too young to express a preferred outcome and there could
be no conflict between Child's best and legal interests. See In re D.L.B., 166
A.3d 322 (Pa.Super. 2017); In re T.S., 192 A3d 1080 (Pa. 2018).

2The record reflects that the trial court also involuntarily terminated Mother's
parental rights to Child by decree entered on January 7, 2019.

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            2008, Father was found guilty of Driving Under the
            Influence ("DUI"). On September 23, 2010, Father
            was convicted of felony drug charges and was
            sentenced to a maximum of 23 months' incarceration.
            On November 1, 2010, Father was found guilty of drug
            possession. On January 13, 2011, Father pled guilty
            to the felony drug charges and was sentenced to a
            maximum period of incarceration of 3 years. On
            March 25, 2015, Father pled guilty to a drug felony
            and was sentenced to a maximum of 23 months'
            incarceration. The underlying Petition to Terminate
            Father's Parental Rights was filed due to Child being
            in DHS custody for a period in excess of six months.
            Father had never lived with the Child nor provided the
            Child any financial support. He was unable to provide
            parental care for the Child nor remedy the causes that
            had brought the Child into DHS care. Father lacked
            stable housing and was in need of mental health
            treatment.

            On January 7, 2019, following a hearing, the       trial
            court ruled to terminate Father's parental rights
            pursuant to 23 Pa. C.S.A. § 2511 (a)(1)(2)(5) and (8)
            and found that termination of the Father's parental
            rights was in the best interest of the Child pursuant to
            23 Pa.C.S.A. § 2511(b). Father filed the instant Notice
            of Appeal on February 5, 2019.

Trial court opinion, 4/5/19 at 2-4 (record citations omitted).

       The record reflects that on February 6, 2019, while Father was still

represented by court -appointed counsel Claire Leotta, Esq., Father filed

separate pro se notices of appeal of the decree terminating his parental rights

and of the goal -change order. After receiving confirmation from the trial court

that Father was represented by counsel, this court entered an order on

February 25, 2019, directing Attorney Leotta to file concise statements of

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



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as completed docketing statements, on Father's behalf no later than March 7,

2019. Attorney Leotta timely complied.

        Father raises the following issues for our review:

              1.    Whether the trial court erred and/or abused its
                    discretion by terminating the parental rights of
                    Father, A.K., pursuant to 23 Pa. C.S.A.
                    [§] 2511(a)(1)    where     Father   presented
                    evidence that he made significant efforts to
                    perform his parental duties[?]

              2.    Whether the trial court erred and/or abused its
                    discretion by terminating the parental rights of
                    Father, A.K., pursuant to 23 Pa. C.S.A.
                    [§] 2511(a)(2)    where     Father    presented
                    evidence that he made significant efforts to
                    remedy any incapacity or neglect[?]

              3.    Whether the trial court erred and/or abused its
                    discretion by terminating the parental rights of
                    Father, A.K., pursuant to 23 Pa. C.S.A.
                    [§§] 2511(a)(5) and (a)(8) where the evidence
                    clearly showed that [C]hild was removed from
                    Mother's care at birth and [F]ather was not
                    known at that time and was incarcerated[?]

              4.    Whether the trial court erred and/or abused its
                    discretion by terminating the parental rights of
                    Father, A.K., pursuant to 23 Pa. C.S.A.
                    [§] 2511(b) where evidence was presented that
                    Father has a positive parental bond with [C]hild
                    that would be detrimental to sever[?]

Father's brief at 8.

        In matters involving involuntary termination of parental rights, our

standard of review is as follows:

              The standard of review in termination of parental
              rights cases requires appellate courts "to accept the
              findings of fact and credibility determinations of the


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             trial court if they are supported by the record." In re
             Adoption of S.P. , 47 A.3d 817, 826 (Pa. 2012). "If
             the factual findings are supported, appellate courts
             review to determine if the trial court made an error of
             law or abused its discretion." Id. "[A] decision may
             be reversed for an abuse of discretion only upon
             demonstration       of    manifest     unreasonableness,
             partiality, prejudice, bias, or ill -will." Id. The trial
             court's decision, however, should not be reversed
             merely because the record would support a different
             result. Id. at 827. We have previously emphasized
             our deference to trial courts that often have first-hand
             observations of the parties spanning multiple
             hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
             2010)].

In re   T.S.M., 71 A.3d 251, 267 (Pa. 2013). "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) (citation omitted).            "[I]f   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) (citation omitted).

        The termination of parental rights is guided by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires      a   bifurcated analysis

of the grounds for termination followed by the needs and welfare of the child.

             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


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              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) (citations omitted). We have

defined clear and convincing evidence as that which 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   C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting

Matter of Adoption of Charles E.D.M.          II,   708 A.2d 88, 91 (Pa. 1998).

        In this case, the trial court terminated Father's parental rights pursuant

to Sections 2511(a)(1), (2), (5), and (8), as well as (b). We have long held

that, in order to affirm   a   termination of parental rights, we need only agree

with the trial court as to any one subsection of Section 2511(a), as well as

Section 2511(b).       In re B.L.W.,      843 A.2d 380, 384 (Pa.Super. 2004)

(en banc).       Here, we analyze the court's termination decree pursuant to

Subsections 2511(a)(2) 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:




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                       (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 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)(2), (b).

       We first address whether the trial court abused its discretion by

terminating Father's parental rights pursuant to Section 2511(a)(2).

            In order to terminate parental rights pursuant to
            23 Pa.C.S.A. § 2511(a)(2), the following three
            elements must be met: (1) repeated and continued
            incapacity, abuse, neglect or refusal; (2) such
            incapacity, abuse, neglect or refusal has caused the
            child to be without essential parental care, control or
            subsistence necessary for his physical or mental
            well-being; and (3) the causes of the incapacity,
            abuse, neglect or refusal cannot or will not be
            remedied.



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In re Adoption of M.E.P.,         825 A.2d 1266, 1272 (Pa.Super. 2003) (citation

omitted). "The grounds for termination due to parental incapacity that cannot

be remedied are not limited to        affirmative misconduct. To the contrary, those

grounds may include acts of refusal as well as incapacity to perform parental

duties."   In re Adoption of C.D.R.,             111 A.3d 1212, 1216 (Pa.Super. 2015),

quoting    In re A.L.D.,   797 A.2d 326, 337 (Pa.Super. 2002).              "Parents are

required to make diligent efforts toward the reasonably prompt assumption of

full parental responsibilities.   .   .   .   [A] parent's vow to cooperate, after   a   long

period of uncooperativeness regarding the necessity or availability of services,

may properly be rejected as untimely or disingenuous."                In re A.L.D.,      797

A.2d at 340 (internal quotation marks and citations omitted).

        Here, in terminating Father's parental rights, the trial court expounded

that

              [t]he record demonstrated Father's ongoing inability
              to provide care for or control of Child due to his failure
              to remedy the conditions that brought the Child into
              care. These conditions included the inability of Father
              to provide stable housing and to address his own
              mental health needs. At the Termination Hearing,
              Mr. Khaleef Wilson, the Community Umbrella Agency
              ("CUA") representative, testified that the Single Case
              Plan ("SCP") Objectives for Father were established
              after he was released from prison and his paternity
              was established. The Father's SCP objectives were to
              participate in (1) housing counseling, (2) parenting
              classes, and (3) random drug testing and (4) to visit
              the Child.    The CUA representative testified that
              Father had been unable to find appropriate housing or
              employment. Father also failed to communicate or
              demonstrate his source of income, if any. Father did
              not enroll in mental health treatment until October


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             2018. The CUA Representative testified that Father
             provided no financial assistance to the Child. During
             visitation, Father was unable to change Child's
             diaper.[3] The CUA Representative also testified that
             there existed concerns that Father would continue to
             spend time with the Child's Mother, who had been
             deemed a safety risk to the Child.



             At the hearing, Father testified that he had numerous
             felony convictions and admitted to hav[ing] been a
             drug dealer in his past. Father testified that he lived
             in a rooming house and that he rented a single room.
             Father testified that he lived in the rooming house
             with four other people who were strangers and
             unrelated to him. Father testified that he received
             public assistance and that he received money from
             family members living in Puerto Rico.

             Father testified that his mental health interfered with
             his ability to work and that he had applied for disability
             payments.       Father testified that he had bi-polar,
             depression and ADHD. Despite this mental health
             history, Father did not enroll in mental health
             treatment until October 2018. Father admitted that
             he was presently missing mental health treatment
             appointments.

Trial court opinion, 4/5/19 at 4-6.

        In his brief to this court, Father contends that the trial court weighed

his past criminal history too heavily and that "there was no evidence of any

present incapacity."    (Father's brief at 19-20.)    The record belies Father's



3 We note that the CUA representative testified that although Father "can use
some help with [] parenting," the representative had "not noticeably seen
[Father] actually change [C]hild" and, as a result, he "is not aware" if Father
is able to change Child's diaper.       (Notes of testimony, 1/7/19 at 38.)
Therefore, the trial court's factual finding that Father is "unable to change
Child's diaper" is not supported by the record, and we reject the finding.

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claim.     Notwithstanding the fact that Father's criminal history   is   relevant to

the termination decision, the record supports the trial court's factual findings

that Father lacks appropriate housing; that Father does not work; that Father

does not provide any financial assistance to Child; and that Father has not

been consistent in attending his mental -health treatment.

         We have reviewed the record carefully and conclude that DHS presented

clear and convincing evidence that Father's conduct satisfies the statutory

grounds for terminating Father's parental rights under Section 2511(a)(2).

The record demonstrates that the repeated and continued incapacity of Father

has caused Child to be without essential parental care, control, or subsistence

necessary for his physical or mental well-being and the conditions and causes

of Father's incapacity cannot or will not be remedied by Father. We discern

no abuse of discretion.

         We now turn to whether termination was proper under Section 2511(b).

As to    that section, our supreme court has stated as follows:

               [I]fthe 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.[A.] § 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
               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.,


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               53 A.3d at 791.             However, as discussed below,
             evaluation of        a   child's bonds is not always an easy
             task.

In re   T.S.M., 71 A.3d at 267. "In cases where there                     is no    evidence of any

bond between the parent and child, it is reasonable to infer that no bond

exists. The extent of any bond analysis, therefore, necessarily depends on

the circumstances of the particular case."               In re       K.Z.S., 946 A.2d 753,

762-763 (Pa.Super. 2008) (citation omitted).

        When evaluating      a    parental bond, "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."     In re Z.P.,     994 A.2d at 1121 (internal citations omitted).

        Moreover,

             While   a   parent's emotional bond with his or her child
               is a major aspect of the subsection 2511(b)
               best -interest analysis, it is nonetheless only one of
               many factors to be considered by the court when
               determining what is in the best interest of the child.

                     [I]n addition to       a   bond examination, the
                     trial court can equally emphasize the
                     safety needs of the child, and should also
                     consider the intangibles, such as the love,
                     comfort, security, and stability the child
                     might have with the foster parent.          .   .    .




In re Adoption of C.D.R.,             111 A.3d at 1219, quoting          In re N.A.M.,    33 A.3d

95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).

        Our supreme court has stated that, "[c]ommon sense dictates that

courts considering termination must also consider whether the children are in
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a    pre -adoptive home and whether they have    a   bond with their foster parents."

In re    T.S.M., 71 A.3d at 268. The court directed that, in weighing the bond

considerations pursuant to Section 2511(b), "courts must keep the ticking

clock of childhood ever in mind."      Id. at 269.     The T.S.M. court observed,

"[c]hildren are young for   a   scant number of years, and we have an obligation

to see to their healthy development quickly. When courts fail         .   .   .   the result,

all too often, is catastrophically maladjusted children."     Id.
         The record reflects that Child, who was 14 months old at the time of the

termination hearing, has never lived with Father. Child lives with his foster

parents who want to adopt him. (Notes of testimony, 1/7/19 at 57-58.) Child

calls his foster mother "mom -mom."        (Id. at 60.) The caseworker testified
that when Child wants something, he looks to his foster mother to fulfill his

needs.     (Id. at 47.) Additionally, the caseworker opined that Child               has no

bond with Father and that termination would not result in irreparable harm to

Child.   (Id. at 44-45.)
         In terminating Father's parental rights under Section 2511(b), the trial

court commended Father for being candid about his criminal history and his

potential for re -incarceration, but stressed that Father's "criminal history           is   of

grave concern" "with regard to the safety of [C]hild." (Id. at 85.) The trial

court further emphasized that all parental duties are being performed by

Child's foster parents and that it is in Child's best interest to remain with the

foster family. (Id. at 85-86.) The trial court also found that termination would



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have no detrimental effect on Child. Consequently, the trial court terminated

Father's parental rights under Section 2511(b) because termination was in the

Child's best interest. (Trial court opinion, 4/5/19 at 7-8.)

        Based upon our thorough review of the record, we find no abuse of

discretion and conclude that the trial court appropriately terminated Father's

parental rights under Sections 2511(a)(2) and (b).

        Order affirmed. Decree affirmed.

Judgment Entered.




Joseph D. Seletyn,
Prothonotary




Date: 8/12/19




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