J-A30024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: L.N.                :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
                                         :
                                         :
                                         :
                                         :
 APPEAL OF: A.N., BIOLOGICAL             :
 FATHER                                  :   No. 1182 WDA 2017

                   Appeal from the Decree June 21, 2017
              In the Court of Common Pleas of McKean County
                   Orphans' Court at No: No. 42-17-0062

 IN THE INTEREST OF: M.N.                :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
                                         :
                                         :
                                         :
                                         :
 APPEAL OF: A.N., BIOLOGICAL             :
 FATHER                                  :   No. 1183 WDA 2017

                   Appeal from the Decree June 20, 2017
              In the Court of Common Pleas of McKean County
                     Orphans' Court at No: 42-17-0061

BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                       FILED FEBRUARY 15, 2018

      A.N. (“Father”) appeals from the decrees entered June 20, 2017, and

June 21, 2017, in the Court of Common Pleas of McKean County, which

involuntarily terminated his parental rights to his minor children, M.N., a male
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born in June 2010, and L.N., a female born in June 2009 (collectively, “the

Children”).1 After careful review, we affirm.

       We summarize the relevant factual and procedural history of this matter

as follows.     McKean County Children and Youth Services (“the Agency”)

obtained emergency custody of the Children in February 2016, after Mother’s

minor daughter from a prior relationship accused Father of sexual abuse. N.T.,

5/15/17, at 22-25, 30. The Children remained in foster care until the trial

court returned them to Mother in March or April 2016. Id. at 30, 52. However,

the court removed the Children and placed them in foster care a second time

in May 2016. Id. The court adjudicated the Children dependent on July 15,

2016. Exhibit Agency 1 (dependency orders).

       Currently, Father is incarcerated in a state correctional institution after

pleading guilty to indecent assault.           N.T., 5/15/17, at 67, 78. Father was

found to be a sexually violent predator, and is required to register as a sexual

offender for the remainder of his life. Id. at 78-79. Father’s minimum release

date is in August 2018, while his maximum release date is in February 2021.

Stipulation (L.N.), 4/24/17.

       On March 23, 2017, the Agency filed petitions to terminate Father’s

parental rights to the Children involuntarily.          The trial court conducted a

termination hearing on May 15, 2017.              Following the hearing, on June 20,
____________________________________________


1H.S. (“Mother”) relinquished her parental rights to the Children voluntarily.
Mother did not file a brief in connection with this appeal, nor did she file her
own separate appeal.


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2017, the court entered a decree terminating Father’s parental rights to M.N.

The court entered a decree terminating Father’s parental rights to L.N. on June

21, 2017. Father timely filed notices of appeal on July 18, 2017, along with

concise statements of errors complained of on appeal.2

       Father now raises the following issues for our review.

       [1.] Whether the trial court erred in finding that the evidence
       admitted at trial was sufficient to support an involuntary
       termination of parental rights?

       [2.] Whether the trial court’s application of an ex post facto law to
       support the involuntary termination of parental rights is
       unconstitutional?

Father’s Brief at 4 (suggested answers and trial court answers omitted).
____________________________________________


2 The record reveals that Father filed his notices of appeal and concise
statements on July 18, 2017, but that the McKean County Register of
Wills/Clerk of Orphans’ Court covered the original time-stamps with correction
tape and time-stamped the documents for a second time on July 28, 2017.
On August 22, 2017, this Court received an e-mail from an employee at the
Register of Wills/Clerk of Orphans’ Court, indicating that the original time-
stamps were “whited out because the Praecipe for In Forma Pauperis Order
was not approved. Once the Order granting In Forma Pauperis was signed by
the judge, we time-stamped the Notice of Appeal and Statements of Errors
Complained of on Appeal.” E-mail, 8/22/17. Although the e-mail indicates
that Father requested in forma pauperis status on July 18, 2017, his praecipes
to appeal in forma pauperis are dated and time-stamped July 19, 2017.

We note that Father timely filed his notices of appeal on July 18, 2017, even
though he failed to request in forma pauperis status until the next day and,
presumably, failed to pay the requisite filing fee. It is well-settled that “[a]n
appeal filed within the allowed time period without the requisite fee will still
be considered valid.” See First Union Nat. Bank v. F.A. Realty Investors
Corp., 812 A.2d 719, 723 (Pa. Super. 2002). If an appellant delays in paying
a filing fee, or in seeking in forma pauperis status, this Court may exercise its
discretion to dismiss the appeal. Id. Here, Father’s counsel acted promptly
by requesting in forma pauperis status on July 19, 2017. Therefore, we
decline to dismiss this appeal.

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      We review Father’s issues mindful of our well-settled standard of review.

      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.

      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).

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

to Sections 2511(a)(1), (2), (5), (8), (11), and (b). We need only agree with


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

2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.

2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze

the court’s decision to terminate under Section 2511(a)(2) and (b), which

provides as follows.3

       (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.

                                           ***

       (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).
____________________________________________


3 Father’s second issue on appeal, in which he contends that the trial court
applied an ex post facto law in violation of his constitutional rights, applies to
Section 2511(a)(11). Because we conclude that the record supports the
court’s decision to terminate under Section 2511(a)(2), we need not address
Section 2511(a)(11) or Father’s constitutional challenge.

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      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.

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 A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations

omitted).    Importantly, “a parent’s incarceration is relevant to the section

(a)(2) analysis and, depending on the circumstances of the case, it may be

dispositive of a parent’s ability to provide the ‘essential parental care, control

or subsistence’ that the section contemplates.” In re A.D., 93 A.3d 888, 897

(Pa. Super. 2014) (citation omitted).

      Instantly, the trial court found that Father is incapable of parenting the

Children, and that he cannot, or will not, remedy his parental incapacity. Trial

Court Opinion (L.N.), 6/19/17, at 8-9.         The court emphasized Father’s

incarceration, his lengthy criminal history, his history of substance abuse, and

his mental health issues. Id. at 8. The court also expressed concern that

Father will have limited employment opportunities upon his release, that he


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may not complete sexual offender treatment successfully, and that he may

commit additional crimes. Id.

       In response, Father argues that he does not have a lengthy prison

sentence, and that he is participating in programs that will allow him to find

employment upon his release. Father’s Brief at 28-29. Father argues that he

has done everything that the Agency asked him to do, and that he utilized all

available resources to maintain contact with the Children. Id. at 28-30.

       Our review of the record supports the trial court’s findings. During the

termination hearing, the Agency presented the court with documents detailing

Father’s extensive criminal history, which the court admitted into evidence as

Exhibits Agency 2 through Agency 9. Father’s criminal history dates back to

2003, and includes convictions for corruption of minors, underage drinking,

furnishing alcohol to minors, possession of marijuana, possession of drug

paraphernalia, conspiracy to commit theft, criminal mischief, simple trespass,

and aggravated assault.          Exhibit Agency 2-7.   Father also has a prior

conviction for indecent assault, which resulted from an incident unrelated to

his sexual abuse of Mother’s daughter.4 Exhibit Agency 8-9.

       Concerning his more recent conviction for indecent assault, Father

testified that he was arrested and charged in February 2016, and that he has

remained incarcerated ever since. N.T., 5/15/17, at 77-78. Father pled guilty,
____________________________________________


4This incident took place in March 2015, and Father was charged in April 2015.
Exhibit Agency 8. Apparently, Father was out on bail at the time he was
arrested for sexually abusing Mother’s daughter. A jury convicted Father in
March 2016. Id.

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and the case is currently on appeal. Id. at 78-79. Father explained that he

is appealing only the finding that he is a sexually violent predator, and that

he is not attempting to withdraw his guilty plea, at least “[n]ot yet.” Id. The

parties stipulated that Father’s minimum release date is August 2018, while

his maximum release date is February 2021. See Stipulation (L.N.), 4/24/17.5

       Concerning his history of drug use, Father acknowledged that his parole

was revoked in 2012, after he tested positive for marijuana and cocaine. N.T.,

5/15/17, at 79-81. Father claimed that he and Mother “smoked one joint that

had a little cocaine on it and that was it and [the Children] were sleeping.”

Id. at 81. Father further acknowledged that he “admitted to Adult Probation”

that he used Vicodin in 2012, although he claimed that he only took one pill,

and that he needed it to “go to work.” Id.

       The trial court also heard the testimony of the Children’s paternal

grandmother, R.N. (“Paternal Grandmother”). Paternal Grandmother testified

that Father used marijuana since he was approximately seventeen years old,

and that he is now thirty-two years old. Id. at 90, 98. She recalled that

Father would sometimes “be good for 2-3 years and then kind of have a . . .

____________________________________________


5 During the termination hearing, the trial court ordered the parties to reach
a stipulation as to Father’s minimum and maximum release dates, but the
parties failed to do so by the close of testimony. The certified record on appeal
contains stipulations dated May 15, 2017, the same day as the hearing.
Oddly, the stipulations are time-stamped as being filed on June 21, 2017, but
the original time-stamps are once again covered with correction tape, and the
date of April 24, 2017 is written over them in pen. The stipulations could not
have been filed on April 24, 2017, given that the parties had not yet reached
a stipulation by the conclusion of the May 15, 2017 hearing.

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little falling back and stuff.” Id. at 98. Paternal Grandmother theorized that

Father’s drug use might be his way of attempting to self-medicate his mental

health issues. Id.    She testified that Father was diagnosed with attention

deficit hyperactivity disorder when he was nine years old, and with bipolar

disorder when he was twelve years old. Id. at 92.

      Thus, the record confirms that Father is incapable of parenting the

Children, and that he cannot, or will not, remedy his parental incapacity. As

the record reveals, Father has a significant criminal history, as well as a history

of substance abuse and mental health issues. Most troublingly, Father pled

guilty to sexually abusing Mother’s minor daughter, resulting in one of his two

convictions for indecent assault. Father’s history as a repeat sexual offender,

and particularly his status as a sexually violent predator who has targeted a

young child, indicates that he may pose a risk of harm to the Children if they

are ever returned to his care.

      Moreover, Father has been incarcerated continuously since February

2016, and it is not clear when he will be released. Even assuming that Father

is released at the earliest possible opportunity in August 2018, he will be

unable to resume performing parental duties for the foreseeable future. As

this Court has stated, “a child’s life cannot be held in abeyance while a parent

attempts    to   attain   the    maturity   necessary    to   assume    parenting

responsibilities. The court cannot and will not subordinate indefinitely a child’s

need for permanence and stability to a parent’s claims of progress and hope




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for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.

2006).

      We next consider whether the trial court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(b).

      Section 2511(b) focuses on whether termination of parental rights
      would best serve the developmental, physical, and emotional
      needs and welfare of the child. As this Court has explained,
      Section 2511(b) does not explicitly require a bonding analysis and
      the term ‘bond’ is not defined in the Adoption Act. Case law,
      however, provides that analysis of the emotional bond, if any,
      between parent and child is a factor to be considered as part of
      our analysis. 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. Additionally, this Court stated
            that the trial court should consider the importance of
            continuity of relationships and whether any existing
            parent-child bond can be severed without detrimental
            effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and

citations omitted).

      Here, the trial court found that terminating Father’s parental rights

would best serve Child’s needs and welfare.        Trial Court Opinion (L.N.),

6/19/17, at 9. The court reasoned that the Children are bonded with their

foster mother, and are excelling in her care. Id. The court found that the



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Children also share a bond with Father, but that this bond is “more limited”

due to the passage of time, and is outweighed by the benefits of adoption.

Id.

      Father contends that the trial court failed to consider the effect that

terminating his parental rights would have on the Children, and that the

court’s conclusions were cursory and without supporting evidence. Father’s

Brief at 40, 43, 45-46. Father argues that the Children are bonded with him,

and that the Agency did not present any evidence indicating that the Children

“were doing poorly” while in his care or had any major behavioral issues. Id.

at 44-45.

      Our review of the record again supports the findings of the trial court.

During the termination hearing, the court heard the testimony of Agency

caseworker, Heather Morey. Ms. Morey testified that a court order permits

Father to contact the Children by sending them letters and speaking to them

on the phone, but only if the Children’s trauma therapist deems it

“therapeutically appropriate.”   N.T., 5/15/17, at 33, 36-37.      Father sends

letters to the Children approximately once every two months, and the

therapist presents the letters in the Children.     Id. at 33-34, 42-43.     The

Children have also written to Father twice. Id. at 39. The therapist has not

yet allowed Father to have phone contact with the Children. Id. at 40.

      Concerning the Children’s relationship with Father, Ms. Morey testified

that the Children say that they miss Father after receiving his letters, but that

it is usually “[L.N.] more than [M.N.]        He seems a little too young to

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understand.” Id. at 43, 46-47. The letters have also made the Children upset.

Id. at 41. Ms. Morey explained that L.N.’s “school had mentioned not to send

her back to school after she reads a letter from her father because they had

. . . problems with her crying after therapy.” Id. Based on the Children’s

reaction to the letters, Ms. Morey opined that the Children have a bond with

Father. Id. at 46.

      Despite this bond, Ms. Morey testified that terminating Father’s parental

rights would best serve the Children’s needs and welfare. Id. at 34-35. She

based this conclusion on Father’s incarceration, his criminal history, and the

stability that the Children enjoy in the home of their foster mother, R.L. Id.

at 35. Ms. Morey visits the Children at their foster home weekly, and “from

what I’ve observed they love it there. They have stability. [R.L.] works with

them one on one. She treats them like her own children -- [R.L.] is involved

in all of their activities.” Id. at 31. Ms. Morey opined that the Children and

R.L. have “a strong bond.” Id. at 34.

      The trial court also heard from R.L., who testified that she treats the

Children like her own biological children, and would like to adopt them. Id.

at 57. R.L. reported that both she and Mother have spoken to the Children

about the possibility of adoption. Id. R.L. was initially hesitant to speak to

the Children about adoption, but decided to do so after Mother spoke to the

Children first. Id. R.L. recalled that the Children “reacted well. They keep

talking about going to Disney World . . . that was their big thing they want to

go [t]o Disney World.” Id. at 58 (italics in original). R.L. explained, “they

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want to go with mom but they know that that can’t happen and so they are

okay with the fact that they are staying with me and visiting with her.” Id. at

64. The Children refer to R.L. as their “step-mom.” Id. at 57

      Thus, the record confirms that terminating Father’s parental rights

would best serve the Children’s needs and welfare.         As discussed above,

Father is incapable of parenting the Children, and will not be capable at any

point in the foreseeable future. While the Children share a bond with Father,

their lives cannot remain on hold indefinitely. Moreover, the Children share a

bond with their foster mother, R.L. The record indicates that the Children

understand and accept that they will remain with R.L., and there is no reason

to believe that they will suffer irreparable harm if Father’s parental rights are

terminated.

      Based on the foregoing, we conclude that the trial court did not abuse

its discretion by involuntarily terminating Father’s parental rights to the

Children. Therefore, we affirm the court’s June 20, 2017 and June 21, 2017

decrees.

      Decrees affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/2018

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