J-S40031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: K.I.T., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: L.T., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 140 EDA 2017

                   Appeal from the Order Entered December 6, 2016
                 In the Court of Common Pleas of Philadelphia County
                   Family Court at No(s): CP-51-AP-0000543-2016,
                  CP-51-DP-0000274-2015, FID 51-FN-000264-2015


BEFORE:      OTT, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                     FILED JULY 25, 2017

        L.T. (“Father”) appeals from the decree entered on December 6, 2016,

in the Court of Common Pleas of Philadelphia County, that involuntarily

terminated his parental rights to his daughter, K.I.T. (“Child”), born in May

of 2013.1,   2
                 Upon careful review, we affirm.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   By separate decrees entered on December 6, 2016, the trial court
involuntarily terminated the parental rights of A.R. (“Mother”) and the
unknown father. Neither Mother nor any unknown father filed a notice of
appeal from the respective decree.
2
  The trial court also issued a goal change order dated and entered on
December 6, 2016, to which Father filed a notice of appeal. We conclude
that Father’s appeal from the goal change order is waived because he has
not asserted any error regarding it in his concise statement of errors
(Footnote Continued Next Page)
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       It is undisputed that Child was removed from both Father and Mother

when she was approximately one and a half years old. N.T., 12/6/16, at 10.

Child is diagnosed with macrocephaly, and she suffers from a seizure

disorder. Trial Court Opinion, 2/8/17, at 2 (unpaginated); N.T., 12/6/16, at

25. Child has a history of developmental delays involving her speech and

motor skills.   Trial Court Opinion, 2/8/17, at 2; N.T., 12/6/16, at 21.             In

addition, Child has an Individualized Education Plan (“IEP”). N.T., 12/6/16,

at 22. On January 5, 2015, the Philadelphia Department of Human Services

(“DHS”) received a report that Child was not attending her medical

appointments. Trial Court Opinion, 2/8/17, at 2. Following an evidentiary

hearing, the trial court adjudicated Child dependent on February 13, 2015,

and placed her in foster care.

       DHS required that Father satisfy the following Single Case Plan (“SCP”)

objectives in order to be reunified with Child: obtain a drug and alcohol

assessment from the Clinical Evaluation Unit (“CEU”); provide five random

drug   screens;    obtain      suitable   housing;   participate   in   the   Achieving



                       _______________________
(Footnote Continued)

complained of on appeal or in the statement of questions involved in his
brief. See Krebs v. United Refining Co. of Pa., 893 A.2d 776, 797 (Pa.
Super. 2006) (“We will not ordinarily consider any issue if it has not been set
forth in or suggested by an appellate brief’s statement of questions involved,
Pa.R.A.P. 2116(a), and any issue not raised in a statement of [errors]
complained of on appeal is deemed waived”) (citations omitted).




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Reunification Center (“ARC”) for parenting classes and housing assistance;

and participate in visitation with Child. N.T., 12/6/16, at 14.

       On June 13, 2016, DHS filed a petition for the involuntary termination

of Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5),

(8), and (b). A hearing occurred on December 6, 2016, during which DHS

presented the testimony of Yvonne Vizcarrondo, the Community Umbrella

Agency (“CUA”) caseworker for this family since March 22, 2016. The Child

Advocate, Donna Wren, Esquire, also questioned Ms. Vizcarrondo, as did

Father’s counsel.       The Child Advocate then called Father as on cross-

examination.      Father subsequently testified on his own behalf on direct

examination. At the conclusion of the testimonial evidence, counsel for DHS

and the Child Advocate made closing arguments on the record and in open

court in support of the involuntary termination of Father’s parental rights.

See N.T., 12/6/16, 51-55.

       By decree dated and entered on December 6, 2016, the trial court

granted DHS’s petition for the involuntary termination of Father’s parental

rights.3   Father timely filed a notice of appeal and a concise statement of

____________________________________________


3
  The Child Advocate has filed an appellee brief in support of the subject
decree. We are cognizant of In re Adoption of L.B.M., 2017 Pa. LEXIS
1150 (Pa. March 28, 2017), wherein our Supreme Court held that 23
Pa.C.S.A. § 2313(a) requires the trial court to appoint counsel for a child in a
contested involuntary termination proceeding, and that the failure to do so
constitutes structural error, which can never be harmless in nature. A
plurality of the Court held that the appointment of a guardian ad litem who
(Footnote Continued Next Page)


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errors complained of on appeal pursuant to Pennsylvania Rules of Appellate

Procedure 1925(a)(2)(i) and (b).             The trial court filed its Rule 1925(a)

opinion on February 8, 2017.

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

      1. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of Father . . . pursuant to 23
      Pa.C.S.A. [§] 2511(a)(1) where [F]ather presented evidence that
      he made significant efforts to perform his parental duties,
      obtained employment, completed parenting classes and drug
      and alcohol treatment and visited his daughter consistently while
      in care[?]

      2. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of Father . . . 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
      by obtaining employment, completing parenting classes and drug
      and alcohol treatment and visiting his daughter consistently
      while in care[?]

      3. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of Father . . . pursuant to 23
      Pa.C.S.A. [§] 2511(a)(5) where evidence was provided to
      establish that the child was removed from the care of the
      parents, however Father is currently capable of caring for the
                       _______________________
(Footnote Continued)

is a licensed attorney does not satisfy this mandate. Four justices disagreed
and opined in concurring and dissenting opinions that separate
representation would be required only if a child’s best interests and legal
interests conflicted.

In this case, Father does not assert that the Child Advocate, a licensed
attorney, failed to represent Child’s legal interests pursuant to Section
2313(a). To the extent the Child Advocate represented both the legal and
best interests of the Child, we deem those interests not in conflict. Indeed,
Child was approximately three and one-half years old at the time of the
subject proceedings. Therefore, Child lacked the capacity to articulate her
preference regarding the involuntary termination of Father's parental rights.



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      child and the conditions which led to removal have been
      remedied[?]

      4. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of Father . . . pursuant to 23
      Pa.C.S.A. [§] 2511(a)(8) where evidence was presented to show
      that Father is currently capable of caring for the child and the
      conditions which led to removal have been remedied[?]

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

Father’s brief at 7.

      We consider Father’s issues 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
      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.




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       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).

       We need only agree with the trial court as to any one subsection of

Section 2511(a), as well as Section 2511(b), in order to affirm. See In re

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we

conclude that the certified record supports the decree pursuant to Section

2511(a)(2) and (b), which provides as follows.4

       (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.
____________________________________________


4
  Based on this disposition, we need not consider Father’s issues with
respect to Section 2511(a)(1), (5), and (8).



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                                     ...

     (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).

     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

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).

     With respect    to   Section 2511(b),    this   Court has   stated     that,

“[i]ntangibles such as love, comfort, security, and stability are involved in


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the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d

1284, 1287 (Pa. Super. 2005) (citation omitted).      Further, the trial 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.”   Id. (citation omitted).   However, “[i]n 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).

      On appeal, Father asserts that his conduct does not warrant

termination under Section 2511(a)(2) because he “has the present capacity

to care for this child and has addressed all of the concerns that brought this

child into foster care.” Father’s brief at 17.   Upon review, the testimonial

evidence belies Father’s assertions.

      In its Rule 1925(a) opinion, the trial court found that “medical neglect

of the Child by the Father was one of the main reasons the Child was

committed.” Trial Court Opinion, 2/8/17, at 5 (citation to record omitted).

Further, the court found that “Father had not attended the Child’s medical

appointments.    At the hearing, Father testified that he did not know his

Child’s diagnosis; that he had attended one medical appointment, and that

he did not know what medications the Child was prescribed.”          Id. at 6




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(citations to record omitted) (emphasis in original).                The testimonial

evidence supports the court’s findings.

       Ms. Vizcarrondo testified that she as well as Child’s foster mother

informed Father by telephone call and text message of Child’s scheduled

medical appointments. N.T., 12/6/16, at 22, 32. Ms. Vizcarrondo testified

that Father has not attended any of the appointments during the nearly nine

months she has been the CUA caseworker for this family. Id. at 17-18, 22,

25. In addition, Ms. Vizcarrondo testified that Child’s parents were notified

about the initial IEP meeting that occurred on September 22, 2016. Id. at

22-23, 26, 32. On cross-examination by Father’s counsel, Ms. Vizcarrondo

testified that Father “told me he would be available” to attend the IEP

meeting.    Id. at 32-33.       However, Father did not attend.        Id. at 26, 33.

Further, she testified that Child’s parents were notified with respect to a

conference on October 5th involving Child,5 the exact subject of which is

unspecified in the record, and Father did not attend. Id. at 26-27.

       Father testified that he does not know Child’s diagnosis, but that he is

aware she is on “seizure medication.”            Id. at 36.   Father testified that he

attended Child’s medical appointment “for her . . . head scan.” Id. Father

testified that he has been invited to attend Child’s recent medical

____________________________________________


5
 Although the year is unspecified, we presume this conference regarding
Child occurred on October 5, 2016.




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appointments, and, for one of them, he “wasn’t able to leave work.”6 Id. at

36, 44. With respect to the IEP meeting, Father testified that he was not

notified about it.      Id. at 36, 44.         To the extent the trial court made

credibility determinations in favor of Ms. Vizcarrondo and against Father with

respect to his notification of Child’s medical appointments and the IEP

meeting, we discern no abuse of discretion. See In re T.S.M., supra.

       In addition, the trial court found that Father “did not have permanent

housing and that he lived in a rooming house.” Trial Court Opinion, 2/8/17,

at 6 (citation to record omitted).        Father testified that he had moved “last

week” to a “rooming house,” owned by his friend. N.T., 12/6/16, at 37-38.

He acknowledged that his housing is not appropriate for Child. Id. at 38. In

addition, Ms. Vizcarrondo testified that Father does not have appropriate

housing for Child. Id. at 18. She testified that Father did not complete the

program offered by ARC for housing assistance, and that he has not

provided documentation to show he is currently trying to obtain appropriate

housing. Id. at 18-19.

       Finally, the record reveals that Father was convicted of criminal

charges involving manufacturing, delivery, and possession of illegal drugs in

2010, 2011, and 2012.           N.T., 12/6/16, at 5-6; DHS Exhibit 3.      Father

remained on parole during the underlying dependency case, which was a
____________________________________________


6
  Father testified he became employed full-time in May of 2016.              N.T.,
12/6/16, at 43.



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total of nearly 22 months by the time of the subject proceedings. 7 Pursuant

to his SCP objectives, the trial court ordered Father on five separate

occasions to obtain a drug and alcohol assessment at the CEU, but he never

complied. Id. at 14-15. Further, Father refused to participate in two of the

five random drug screens required by his SCP objectives. Id. at 15-16. We

observe that Ms. Vizcarrondo testified on cross-examination by Father’s

counsel:

       Q. [A]ll of his drug screens that have been given here at Family
       Court have been negative, is that correct?

       A. For the most part, yes.

Id. at 33.     Upon review, there is no record evidence that Father tested

positive for illegal drugs during the underlying dependency matter.

       Based on the foregoing testimonial evidence, we discern no abuse of

discretion by the trial court in concluding that Father’s conduct demonstrates

repeated and continued incapacity, neglect, or refusal in attending Child’s

medical appointments and IEP meetings; obtaining appropriate housing; and

in complying with his SCP objectives involving the drug and alcohol

assessment and random drug screens. Father’s conduct in this regard has

____________________________________________


7
  Father testified that he was incarcerated at the time of Child’s birth. N.T.,
12/6/16, at 45. Father’s counsel represented to the trial court on the record
in open court that he was released from prison in December of 2014. Id. at
34. Father was re-incarcerated in September of 2015, and he was released
in January of 2016. Id. Father’s counsel stated to the trial court, “he was
released in January because those . . . charges were dropped.” Id.



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

necessary for her physical or mental well-being.       Further, the causes of

Father’s incapacity, neglect, or refusal cannot or will not be remedied. Thus,

Father’s argument with respect to Section 2511(a)(2) fails.

      With respect to Section 2511(b), Father argues that terminating his

parental rights would cause Child irreparable harm.         Specifically, Father

asserts that he has consistently attended his weekly supervised visits with

Child, and that they share a parent-child bond.

      Our Supreme Court has stated that, “[c]ommon sense dictates that

courts considering termination must also consider whether the children are

in a pre-adoptive home and whether they have a bond with their foster

parents.” T.S.M., supra 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 that, “[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.

      Instantly, there is no dispute that Father attended his weekly

supervised visits, and that his interaction was appropriate during the visits.

N.T., 12/6/16, at 19, 31.    Ms. Vizcarrondo testified that Child calls Father

“Dad.” Id. at 31. However, Ms. Vizcarrondo testified that Child’s primary


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parent-child bond is with her foster mother, a pre-adoptive resource, with

whom she has resided during her entire 22 months of dependency. Id. at

20, 23.

        Further, Ms. Vizcarrondo testified that the foster mother attends

Child’s medical appointments, and that she is involved with meeting Child’s

educational needs, including, but not limited to, attending Child’s IEP

meetings.     Id. at 21-22. Ms. Vizcarrondo testified as follows on cross-

examination by the Child Advocate:

        Q. [H]as [Child] made progress while in the care of [foster mother]?

        A. Very much so.

Id. at 23-24.     As such, Ms. Vizcarrondo testified that terminating Father’s

parental rights will not cause Child irreparable harm. Id. at 23.

        Based on the totality of the record evidence, we discern no abuse of

discretion by the trial court in concluding that terminating Father’s parental

rights will serve Child’s developmental, physical, and emotional needs and

welfare pursuant to Section 2511(b). Accordingly, we affirm the decree.

        Decree affirmed.

        Judge Dubow did not participate in the consideration or decision of this

case.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2017




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