J-A07028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF C.L., A MINOR           :   IN THE SUPERIOR COURT OF
    CHILD                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.S., NATURAL FATHER            :
                                               :
                                               :
                                               :
                                               :   No. 1693 WDA 2016

                     Appeal from the Order October 3, 2016
              In the Court of Common Pleas of Washington County
                       Orphans’ Court at No: 63-15-1173


BEFORE:      OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MAY 26, 2017

        J.S. (“Father”) appeals from the October 3, 2016 order that granted

the petition of Washington County Children and Youth Social Services

Agency (“CYS”) for the involuntary termination of his parental rights to the

female child, C.L., born in September of 2014.1          Upon careful review, we

affirm.2




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  On July 26, 2016, the orphans’ court involuntarily terminated the parental
rights of L.D. (“Mother”). Mother did not file a notice of appeal.
2
  We observe that the Guardian ad litem (“GAL”) filed a brief in support of
the order involuntarily terminating Father’s parental rights.
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       The orphans’ court set forth the following factual findings, in relevant

part, in its opinion accompanying the subject order.

       On September 6, 2014, C.L. was placed with CYS. She was
       adjudicated dependent on September 15, 2014. [Father] has
       been incarcerated since the September 14, 2014 adjudicatory
       hearing.[3] . . .

       [Father] has a criminal history dating back over a decade
       involving serious violations with minor children in Allegheny and
       Fayette County. In 2003, [Father] was charged with felony
       aggravated indecent assault, misdemeanor indecent assault
       without the consent of others and corruption of minors. [Father]
       pled guilty to the charges of indecent assault, indecent assault
       without the consent of others, and corruption of minors and
       served a full nine year sentence. The victim of the incident(s),
       which gave rise to these criminal charges, was the minor child of
       [Father’s] girlfriend. [Father] is a Tier III Sex Offender.[4]

       On May 15, 2014, [Father] was charged with multiple counts of
       interference with the custody of the children, conspiracy of
       interference with the custody of children and concealment of the
       whereabouts of a child when he helped [Mother’s] children . . .
       escape from the Westmoreland County foster home where they
       were placed following a shelter care hearing and transporting
       them to neighboring Fayette County.[5] [Father] pled guilty to
       four charges of concealment of the whereabouts of a child and is
       currently incarcerated at SCI [State Correctional Institution] -
____________________________________________


3
  The record reveals that Father was incarcerated at the time of C.L.’s birth
up through the time of the subject proceedings, and that C.L. has never met
him. N.T., 7/22/16, at 11, 13.
4
  The CYS caseworker, Dawn Smith, testified that, “in 2013, [Father] failed
to comply with registration requirements in regards to the Megan’s Law.”
N.T., 7/22/16, at 10.
5
  Father’s criminal charges related to his actions with respect to Mother’s
three older minor daughters, who are C.L.’s half-sisters. The older children
were placed together in a foster home in May of 2014, prior to C.L.’s birth.
N.T., 7/22/16, at 10.



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       Somerset. He was sentenced to a minimum of two years and a
       maximum of four years.[6] In August 2016, [Father’s] parole
       request was denied, and he will appear before the parole board
       again in May 2017.

       As a result of the dependency of [C.L.], [Father] was court[-]
       ordered to participate in a Drug and Alcohol evaluation and
       follow through with any recommended treatment, participate in
       a Mental Health evaluation, complete a psycho-sexual
       assessment and follow all recommendations. During the course
       of the dependency action, [Father] did not provide any
       documentation that he had participated in any of the court
       ordered services. As late as March 2, 2016, the Dependency
       Court found that [Father] had made no progress towards
       alleviating the circumstances which necessitated the original
       placement. . . .

Trial Court Opinion, 10/3/16, at 2-3 (citations to record omitted).

       On September 30, 2015, CYS filed a petition for the involuntary

termination     of   Father’s   parental       rights   pursuant   to   23   Pa.C.S.A.   §

2511(a)(1), (2), and (b). A hearing occurred on July 22, 2016, during which

CYS presented the testimony of its caseworker, Dawn Smith, and the Court

Appointed Special Advocate (“CASA”), Linda Silvas. Father testified on his

own behalf via video telephone conferencing from SCI - Somerset, and he

presented the testimony, via telephone, of John Shearer, his prison

counselor. Finally, the GAL presented the testimony of H.W., C.L.’s foster

father, a pre-adoptive resource, who, along with his wife, is also the foster

resource of C.L.’s half-sisters. N.T., 7/22/16, at 99.

____________________________________________


6
  Father was sentenced by order dated December 16, 2014. N.T., 7/22/16,
at 19.



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       By order dated October 3, 2016, and entered on October 4, 2016, the

orphans’ court involuntarily terminated Father’s parental rights. Father filed

a notice of appeal on November 3, 2016.7 The orphans’ court issued its Rule

1925(a) opinion on November 22, 2016.

       On appeal, Father presents the following issues for our review:

       1. Did the [orphans’] court err in terminating Father’s parental
       rights where [CYS] failed to prove by clear and convincing
       evidence that Father evidenced a settled purpose of relinquishing
       parental claims to the child and failed to prove that Father
       refused or failed to perform parental duties?

       2. Did the [orphans’] court err in terminating Father’s parental
       rights where [CYS] failed to prove by clear and convincing
       evidence that the child was without essential parental care,
       control or subsistence necessary for her physical or mental well-
       being due to Father’s repeated and continued incapacity, abuse,
       neglect or refusal?

Father’s Brief at 2.

       We review Father’s appeal according to the following standard:

       The standard of review in termination of parental rights cases
       requires appellate courts 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. A decision may be reversed for an
       abuse of discretion only upon demonstration of manifest
____________________________________________


7
  In contravention of Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i)
and (b), Father did not file a concise statement of errors complained of on
appeal concurrently with his notice of appeal. However, Father filed a
concise statement on November 16, 2016. Because neither CYS nor the GAL
claims prejudice as a result of Father’s procedural violation, we will not
quash or dismiss his appeal. See In re K.T.E.L., 983 A.2d 745 (Pa. Super.
2009).



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      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely
      because the record would support a different result. We have
      previously emphasized our deference to trial courts that often
      have first-hand observations of the parties spanning multiple
      hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

      Termination of parental rights is governed by Section 2511 of the

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

analysis.

      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) (citations omitted).

      Instantly, in the statement of questions involved in his brief, Father’s

first issue relates to Section 2511(a)(1), and his second issue relates to

Section 2511(a)(2). See Father’s Brief at 2, supra.

      With respect to the Section 2511(a) challenges, this Court needs only

agree with the decision of the orphans’ court as to any one subsection in

order to affirm the termination of parental rights. See In re B.L.W., 843

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A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we conclude that

the court properly terminated Father’s parental rights pursuant to Section

2511(a)(2), which provides as follows.8

       (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:

                                           ...

              (2) The repeated and continued incapacity, abuse,
              neglect or refusal of the parent has caused the child
              to be without essential parental care, control or
              subsistence necessary for his physical or mental
              well-being and the conditions and causes of the
              incapacity, abuse, neglect or refusal cannot or will
              not be remedied by the parent.

                                           ...


23 Pa.C.S.A. § 2511(a)(2).

       This Court has stated as follows.

       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.

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

omitted).    Further, we have stated, “[t]he grounds for termination due to
____________________________________________


8
  Based on this disposition, we need not consider Father’s first issue relating
to Section 2511(a)(1).



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J-A07028-17


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 A.L.D., 797 A.2d 326,

337 (Pa. Super. 2002) (citations omitted).

      As noted above, Father argues that CYS did not prove by clear and

convincing evidence that his conduct warranted termination under Section

2511(a)(2).    Father argues that he “remedied many of the conditions

causing the child to be without the essential parental care necessary for her

well-being.”   Father’s Brief at 9.     Specifically, Father asserts that he

participated while incarcerated in “a sex offenders program and violence

prevention”; “psychological counseling at SCI”; and he “attempted to

participate in a parenting program.” Id. at 10 (citations to record omitted).

In short, Father asserts, “he has been rehabilitated . . . and has learned

from his mistakes.”    Id. (citations to record omitted).     Further, Father

asserts, “[h]e is ready, willing and able to parent C.L.” Id. at 8 (citation to

record omitted). We disagree.

      It is well-established that incarceration is not “a litmus test” for

termination of parental rights. In re Adoption of S.P., 47 A.3d 817, 830

(Pa. 2012). However, the S.P. Court held that “incarceration 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


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essential parental care, control or subsistence and that the causes of the

incapacity cannot or will not be remedied.” Id. at 828.

      Assuming Father is given credit for time served before his sentencing

date, he would have had approximately twenty-two months remaining on his

maximum sentence by the time of the subject proceedings, at which time

C.L. will be nearly four years old. Further, the orphans’ court concluded that

Father’s “road to recovery and rehabilitation will not end when he is released

from incarceration.”   Trial Court Opinion, 10/3/16, at 9.    The testimonial

evidence supports this finding. Indeed, even if Father is released on parole,

he will be unable to immediately provide “essential parental care, control or

subsistence” to C.L.   Father testified on inquiry by the orphans’ court as

follows:

      [Q.] [W]hat would be your plan in the event you are released
      from prison with regard to parenting [C.L.][?]

      [A.] My plan is to first get to have a bonding relationship with
      [C.L.].

      [Q.] How are you going to do that?

      [A.] By visitation days, getting to know her when I’m supposed
      to be there, and if I’m able to have phone contact with her - -
      helping her to hear my voice. Supporting her with everything
      that I could possibly support her with and taking care of her
      financially as well as emotionally.

                                     ...

      [Q.] What is the plan for employment whenever you get out of
      prison?




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      [A.] I am working for Boyco (phonetic) Construction, which is my
      deceased mother’s boyfriend’s company. He offered me a job.
      He told me that, you know, he is willing to - - being that I don’t
      have a place to live except wherever I could find - - and I
      contacted him, and he told me he is willing to get me a place to
      live, a job, and help me get situated and get back on my feet so
      that I could take better care of my family.

N.T., 7/22/16, at 90-91. Based on the foregoing, Father acknowledged that

he will be unable to immediately provide essential parental care to C.L. upon

his release from prison.

      In addition, the CYS caseworker, Dawn Smith, testified that she has

not received any documentation demonstrating that Father participated in

and/or completed any of the court-ordered services, described above, while

incarcerated.    N.T., 7/22/16, at 32.   As such, we agree with the orphans’

court that “the record contains no credible or persuasive evidence that

Father has remedied his parental [in]capacity.”         Trial Court Opinion,

10/3/16, at 9.

      C.L. has resided all of her life in a foster home, along with her older

half-sisters, where she remains secure and stable. She will be nearly four

years old when Father has served his maximum sentence, at which time

Father will still be unable to provide “essential parental care, control or

subsistence.”    We discern no abuse of discretion by the orphans’ court in

concluding that Father’s repeated and continued incapacity has caused C.L.

to be without essential parental care, control or subsistence necessary for

her physical or mental well-being, and the causes of the incapacity cannot or


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will not be remedied. Thus, Father’s issue on appeal fails. See In re B.,

N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (stating that, “a parent’s basic

constitutional right to the custody and rearing of his child is converted, upon

the failure to fulfill his or her parental duties, to the child’s right to have

proper parenting and fulfillment of his or her potential in a permanent,

healthy, safe environment”). Accordingly, we affirm the order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2017




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