J-S62031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.M.M., II                          :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                                           :
APPEAL OF: A.G., FATHER                    :         No. 663 MDA 2016

                    Appeal from the Decree March 29, 2016
              In the Court of Common Pleas of Lancaster County
                     Orphans’ Court at No(s): 115 of 2016


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                   FILED SEPTEMBER 09, 2016

      Appellant, A.G. (“Father”), appeals from the decree entered in the

Lancaster County Court of Common Pleas, which granted the petition of the

Lancaster County Children & Youth Social Service Agency (“Agency”) for

involuntary termination of Father’s parental rights to his minor child, J.M.M.,

II (“Child”). We affirm.

      The trial court opinion sets relevant facts and procedural history of this

case are as follows:

         The [c]ourt first became involved with [J.M.M.] (Mother)
         and [A.G.] (Father), the parents of [Child], on August 20,
         2013, when the [Agency] received information that Mother
         had purposely overdosed on prescription medications and
         was found unresponsive.¹ Father was in prison. After
         Mother was released from the hospital, a safety plan was
         established. Mother did not follow through with the plan
         and a Family Service Plan was put in place, but Mother
         also made little progress in complying with its goals.
         When the household’s electricity was turned off because of
         unpaid bills, the children were placed in foster care on May
         29, 2014. They were found to be dependent after [a]
J-S62031-16


        hearing on June 16, 2014. Mother never completed her
        plan, [and] the Agency filed a petition to terminate her
        parental rights to her two children on January 15, 2016,
        and her [parental] rights were terminated by Decree on
        March 29, 2016. Mother did not appeal this decision.

           ¹ Mother is the parent of [E.M.], who had a different
           father other than J.M.M. II. The parental rights of
           [E.M.] are not included in this appeal.

        Father is incarcerated and has been so since 2010, a year
        after [Child’s] birth, pursuant to charges for aggravated
        assault, robbery with infliction or threat to cause bodily
        injury and forcible rape. His earliest release date is 2026
        [or 2027]. His only contact with [Child] is through the
        mail, and he writes approximately once a month or less.
        [Child] responds to his letters. Although Father in the past
        asked the Agency for updates concerning his son, he has
        not done so recently. The foster mother provides [Father]
        with pictures of [Child]. When Father was in a prior
        facility, he did have visits with [Child],[1] but since being in
        his current facility, he does not see [Child] at all; his last
        visit with [Child] was in 2014. He has not complied with
        the obligations of his Agency Plan, since the only resource
        the prison provides is a violence prevention program.
        Father testified he has a bond with [Child], but presented
        no evidence in support of that statement except his own
        belief.

        [Child] has been in a pre-adoptive home since June 2,
        2014, with his half-sister, E.M. He is happy there. He is
        receiving outpatient therapy and occupational therapy.
        There are two older biological children in the home who
        get along well with [Child] and [E.M.].

        A petition for termination of Father’s parental rights to
        [Child] was filed on January 15, 2016, and a hearing was
        scheduled for Monday, February 29, 2016. That hearing
        was continued to March 28, 2016 because of insufficient

1
  When father was incarcerated in Lancaster County prison, Mother brought
Child to visit Father on a weekly basis. He continued to see Child on a more
or less monthly basis when transferred to other prisons, until Mother lost
custody of Child in 2014.
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         time to present the necessary testimony. During the
         truncated February 29th hearing, the [c]ourt agreed to
         incorporate the prior Juvenile Matter into the Orphans’
         [c]ourt proceeding. After [a] hearing on March 28, 2016,
         the [c]ourt entered a decree on March 29, 2016,
         terminating Mother’s and Father’s parental rights to
         [Child].

(Trial Court Opinion, filed May 17, 2016, at 1-3) (internal citations to record

omitted).   On April 22, 2016, Father filed a notice of appeal and concise

statement of errors complained of on appeal, per Pa.R.A.P. 1925(a)(2)(i).

Mother did not file an appeal.

      Father raises the following issues:

         WAS IT AN ABUSE OF DISCRETION TO GRANT THE
         AGENCY’S PETITION TO TERMINATE WHERE FATHER,
         ALTHOUGH     FACING    A    LENGTHY    SENTENCE,
         CORRESPONDED WITH HIS CHILD ON A MONTHLY BASIS,
         HAD VISITS WITH HIM ON A REGULAR BASIS UNTIL
         STOPPED BY THE AGENCY ONCE THE CHILD WAS IN ITS
         CUSTODY, ATTEMPTED TELEPHONE CONTACT WITH HIS
         CHILD AND RECEIVED UPDATES AND PICTURES FROM THE
         RESOURCE FAMILY?

         DID THE AGENCY MEET ITS BURDEN OF INTRODUCING
         SUFFICIENT EVIDENCE THAT TERMINATION OF PARENTAL
         RIGHTS IS IN THE CHILD’S BEST INTEREST?

(Father’s Brief at 7).

      Appellate review in termination of parental rights cases implicates the

following principles:

         In cases involving termination of parental rights: “our
         standard of review is limited to determining whether the
         order of the trial court is supported by competent
         evidence, and whether the trial court gave adequate
         consideration to the effect of such a decree on the welfare
         of the child.”

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In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

           Absent an abuse of discretion, an error of law, or
           insufficient evidentiary support for the trial court’s
           decision, the decree must stand.       …    We must
           employ a broad, comprehensive review of the record
           in order to determine whether the trial court’s
           decision is supported by competent evidence.

        In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
        banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
        (internal citations omitted).

           Furthermore, we note that the trial court, as the
           finder of fact, is the sole determiner of the credibility
           of witnesses and all conflicts in testimony are to be
           resolved by [the] finder of fact. The burden of proof
           is on the party seeking termination to establish by
           clear and convincing evidence the existence of
           grounds for doing so.

        In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
        2002) (internal citations and quotation marks omitted).
        The standard of clear and convincing evidence means
        testimony that is so clear, direct, weighty, and convincing
        as to enable the trier of fact to come to a clear conviction,
        without hesitation, of the truth of the precise facts in issue.
        In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
        may uphold a termination decision if any proper basis
        exists for the result reached. In re C.S., 761 A.2d 1197,
        1201 (Pa.Super. 2000) (en banc). If the court’s findings
        are supported by competent evidence, we must affirm the
        court’s decision, even if the record could support an
        opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]
        (Pa.Super. 2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d

1165 (2008)).

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     The Agency sought involuntary termination of Father’s parental rights

on the following grounds:

        § 2511. Grounds for involuntary termination

        (a) General Rule.―The rights of a parent in regard to a
        child may be terminated after a petition filed on any of the
        following grounds:

           (1) The parent by conduct continuing for a period of
           at least six months immediately preceding the filing
           of the petition either has evidenced a settled purpose
           of relinquishing parental claim to a child or has
           refused or failed to perform parental duties.

           (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 [her] 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.

                                *    *    *

           (5) The child has been removed from the care of the
           parent by the court or under a voluntary agreement
           with an agency for a period of at least six months,
           the conditions which led to the removal or placement
           of the child continue to exist, the parent cannot or
           will not remedy those conditions within a reasonable
           period of time, the services or assistance reasonably
           available to the parent are not likely to remedy the
           conditions which led to the removal or placement of
           the child within a reasonable period of time and
           termination of the parental rights would best serve
           the needs and welfare of the child.

                                *    *    *

           (8) The child has been removed from the care of the
           parent by the court or under a voluntary agreement
           with an agency, 12 months or more have elapsed

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           from the date of removal or placement, the
           conditions which led to the removal or placement of
           the child continue to exist and termination of
           parental rights would best serve the needs and
           welfare of the child.

                                 *    *    *

        (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)(1), (2), (5), (8), and (b). “Parental rights may be

involuntarily terminated where any one subsection of Section 2511(a) is

satisfied, along with consideration of the subsection 2511(b) provisions.” In

re Z.P., supra at 1117.

        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…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.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).

     Termination under Section 2511(a)(1) involves the following:


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         To satisfy the requirements of [S]ection 2511(a)(1), the
         moving party must produce clear and convincing evidence
         of conduct, sustained for at least the six months prior to
         the filing of the termination petition, which reveals a
         settled intent to relinquish parental claim to a child or a
         refusal or failure to perform parental duties. In addition,

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

         Once the evidence establishes a failure to perform parental
         duties or a settled purpose of relinquishing parental rights,
         the court must engage in three lines of inquiry: (1) the
         parent’s explanation for his…conduct; (2) the post-
         abandonment contact between parent and child; and (3)
         consideration of the effect of termination of parental rights
         on the child pursuant to Section 2511(b).

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

omitted) (emphasis added). Regarding the six-month period prior to filing

the termination petition:

         [T]he trial court must consider the whole history of a given
         case and not mechanically apply the six-month statutory
         provision.     The court must examine the individual
         circumstances of each case and consider all explanations
         offered by the parent facing termination of his…parental
         rights, to determine if the evidence, in light of the totality
         of the circumstances, clearly warrants the involuntary
         termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005).

      The   grounds   for   termination   of   parental   rights   under   Section

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2511(a)(2), 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 (Pa.Super. 2002). “Parents are required to make

diligent efforts towards the reasonably prompt assumption of full parental

responsibilities.”   Id. at 340.   The fundamental test in termination of

parental rights under Section 2511(a)(2) was long ago stated in the case of

In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania

Supreme Court announced that under what is now Section 2511(a)(2), “the

petitioner for involuntary termination must prove (1) repeated and continued

incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,

neglect or refusal caused the child to be without essential parental care,

control or subsistence; and (3) that the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied.” In Interest of Lilley,

719 A.2d 327, 330 (Pa.Super. 1998).

      Our Supreme Court addressed the relevance of incarceration in

termination decisions under Section 2511(a)(2), holding:

         [W]e now adopt the view…that incarceration neither
         compels nor precludes termination. Instead, we hold that
         incarceration is a factor, and indeed can be a
         determinative factor, in a court’s conclusion that grounds
         for termination exist under [Section] 2511(a)(2) where the
         repeated and continued incapacity of a parent due to
         incarceration has caused the child to be without essential
         parental care, control or subsistence and that the causes of
         the incapacity cannot or will not be remedied.


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                                 *    *    *

        In line with the expressed opinion of a majority of justices
        in [In re R.I.S. & A.I.S., 614 Pa. 275, 36 A.3d 567
        (2011)], our prior holdings regarding incapacity, and
        numerous Superior Court decisions, we now definitively
        hold that incarceration, while not a litmus test for
        termination, can be determinative of the question of
        whether a parent is incapable of providing “essential
        parental care, control or subsistence” and the length of the
        remaining confinement can be considered as highly
        relevant to whether “the conditions and causes of the
        incapacity, abuse, neglect or refusal cannot or will not be
        remedied by the parent,” sufficient to provide grounds for
        termination pursuant to 23 Pa.C.S. § 2511(a)(2). … If a
        court finds grounds for termination under subsection
        (a)(2), a court must determine whether termination is in
        the best interests of the child, considering the
        developmental, physical, and emotional needs and welfare
        of the child pursuant to [Section] 2511(b). In this regard,
        trial courts must carefully review the individual
        circumstances for every child to determine, inter alia, how
        a parent’s incarceration will factor into an assessment of
        the child’s best interest.

In re Adoption of S.P., 616 Pa. 309, 328-31, 47 A.3d 817, 828 (2012).2

     Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare.       In re C.P., 901 A.2d 516, 520

2
  “Termination of parental rights under Section 2511(a)(5) requires that: (1)
the child has been removed from parental care for at least six months; (2)
the conditions which led to removal and placement of the child continue to
exist; and (3) termination of parental rights would best serve the needs and
welfare of the child.” In re Z.P., supra at 1118. “[T]o terminate parental
rights under Section 2511(a)(8), the following factors must be
demonstrated: (1) the child has been removed from parental care for
[twelve] months or more from the date of removal; (2) the conditions which
led to the removal or placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and welfare of the
child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa.Super.
2003). Due to our disposition under other subsections of Section 2511, we
will not address the applicability of subsections (a)(5) or (a)(8).
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(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child. The

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

paying close attention to the effect on the child of permanently severing the

bond.” Id. at 520. Significantly:

        In this context, the court must take into account whether a
        bond exists between child and parent, and whether
        termination would destroy an existing, necessary and
        beneficial relationship.     When conducting a bonding
        analysis, 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., supra at 1121 (internal citations omitted).

     “The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and have his…parental rights terminated.”     In re B.L.L.,

787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:

           There is no simple or easy definition of parental
           duties. Parental duty is best understood in relation
           to the needs of a child.        A child needs love,
           protection, guidance, and support. These needs,
           physical and emotional, cannot be met by a merely
           passive interest in the development of the child.
           Thus, this court has held that the parental obligation
           is a positive duty which requires affirmative
           performance.

           This affirmative duty encompasses more than a

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           financial obligation; it requires continuing interest in
           the child and a genuine effort to maintain
           communication and association with the child.

           Because a child needs more than a benefactor,
           parental duty requires that a parent exert himself to
           take and maintain a place of importance in the
           child’s life.

        Parental duty requires that the parent act affirmatively
        with good faith interest and effort, and not yield to every
        problem, in order to maintain the parent-child relationship
        to the best of his…ability, even in difficult circumstances.
        A parent must utilize all available resources to preserve
        the parental relationship, and must exercise reasonable
        firmness in resisting obstacles placed in the path of
        maintaining the parent-child relationship. Parental rights
        are not preserved by waiting for a more suitable or
        convenient time to perform one’s parental responsibilities
        while others provide the child with [his] physical and
        emotional needs.

In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic

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

upon the failure to fulfill his…parental duties, to the child’s right to have

proper parenting and fulfillment of his…potential in a permanent, healthy,

safe environment.” Id. at 856.

     “While a parent’s emotional bond with his…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.” In re N.A.M., 33 A.3d 95, 104 (Pa.Super. 2011).

“The mere existence of an emotional bond does not preclude the termination

of parental rights.” Id. Rather, the court “must examine the status of the


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bond to determine whether its termination would destroy an existing,

necessary and beneficial relationship.” Id. (internal citations and quotation

marks omitted). “Above all else[,] adequate consideration must be given to

the needs and welfare of the child.    A parent’s own feelings of love and

affection for a child, alone, do not prevent termination of parental rights.”

In re Z.P., supra at 1121.

     Importantly, “this Court has recognized a connection between the

involuntary termination of parental rights and the Adoption and Safe

Families Act (“ASFA”)…”      In re R.M.G., 997 A.2d 339, 349 (Pa.Super.

2010), appeal denied, 608 Pa. 648, 12 A.3d 372 (2010). The stated policy

of the ASFA is:

           [T]o remove children from foster placement limbo
           where they know neither a committed parent nor can
           [they] look toward some semblance of a normal
           family life that is legally and emotionally equivalent
           to a natural family…. States such as Pennsylvania,
           which participate in the program, are required to
           return the child to its home following foster
           placement, but failing to accomplish this due to the
           failure of the parent to benefit by such reasonable
           efforts, to move toward termination of parental
           rights and placement of the child through adoption.
           Foster home drift, one of the major failures of the
           child welfare system, was addressed by the federal
           government by a commitment to permanency
           planning, and mandated by the law of Pennsylvania
           in its participation in the Adoption and Safe Families
           Act of 1997. Succinctly, this means that when a
           child is placed in foster care, after reasonable efforts
           have been made to reestablish the biological
           relationship, the needs and welfare of the child
           require [the Agency] and foster care institutions to
           work toward termination of parental rights, placing

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            the child with adoptive parents. It is contemplated
            this process realistically should be completed
            within 18 months.

         Essentially, this legislation shifted away from an
         inappropriate focus on protecting the rights of parents to
         the priority of the safety, permanency and well-being of
         the child. While this 18-month time frame may in some
         circumstances seem short, it is based on the policy that a
         child’s life simply cannot be put on hold in the hope that
         the parent will summon the ability to handle the
         responsibilities of parenting.

Id. (internal citations and quotation marks omitted) (emphasis in original).

      Instantly, in response to Father’s claims, the Orphans’ court first

translated Father’s issue as: “Whether the parental rights of a father should

be terminated when the parent was imprisoned in 2010 for violent crimes

when his son was one year old, when he will be in prison until at least 2026,

when he has seen his son since 2010 only at prison visits which ended in

2014, but has taken no official action to reactivate those visits, when he

writes to his son less than once a month, and when he will need extensive

work on his reunification plan upon release[?]” (See Trial Court Opinion at

3.) Further, the court reasoned:

         The record shows that Father has written to [Child] less
         than once a month. Fewer than 12 letters a year is just
         not enough to show Father’s sincere desire to form a bond.
         And it is certainly an insufficient reason to deprive [Child]
         of the security of the close and present love and care of his
         foster parents. When his visits with [Child] were stopped,
         Father complained to the Agency but did not formally ask
         the [c]ourt to intervene. Father has not taken sufficient
         action to remedy the conditions which rendered [Child] a
         dependent child.


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       The [c]ourt finds that the Agency has met its burden to
       terminate Father’s parental rights under the standards set
       out in Sections 2511(a)(1), (2)…. Father has been in
       prison since [Child] was one year old. [Father] has not
       taken sufficient action to maintain a parental role with his
       child. He has not completed any aspect of his reunification
       plan. At his father’s release date, [Child] will be almost
       18. Even if his rights had not been terminated, Father
       would be a parent in name only, since he is not in a
       position to adopt a personal parental role with his son.
       The [c]ourt realizes that Father has no choice in this
       matter since he will be in jail until 2026, but his lack of
       choice does not grant him a reprieve from a termination.
       His reality is that he is not now and will not in the near
       future be in a position to care for [Child].

                                *     *      *

       The [c]ourt not only disagrees with, but is mystified by,
       Father’s position in favor of maintaining his parental rights.
       In what way is seven-year-old [Child’s] best interest
       served by being turned into a foster child with no hope of
       meaningful contact whatsoever with his biological parent
       for a period of sixteen years? Do fewer than twelve letters
       a year successfully substitute for [regular displays of love
       and affection]? Of course not. But that is what Father
       wants for [Child]. Father wants to retain his status as a
       parent while leaving [Child] essentially parentless.

       Father asserts that despite the separation, he has a
       meaningful bond with [Child], but the [c]ourt does not
       accept that assertion as true. Father had some visits with
       [Child] at his previous prison setting, but those visits
       ended in 2014, when [Child] was five, and Father did not
       fight for their resumption. At [seven] years of age, [Child]
       certainly knows Father, but recognition does not equal an
       emotional bond. As the Superior Court has said:

          … Being Uncle Daddy is not enough. Being a parent
          means assuming responsibility so that a real bond
          develops, not just a casual relationship.

       The Superior Court has also eloquently commented on the
       type of situation in which a parent fights to maintain

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         his…rights, thereby condemning the child to the limbo of
         unending foster care. …

            What [the parent] attempts to preserve is [his]
            sense of worth by holding onto the illusion of
            [fatherhood]. In doing so, [he] would deny [his
            child], in name only, the right to be totally
            assimilated into the only family [the child] has
            known. The price [the child] would pay is too high to
            satisfy [the parent’s need]. Sometimes the greatest
            act of love a parent can express is to let the child go.
            …

         And such is the case for [Child]. Because of the length of
         Father’s sentence and his inability to maintain a parental
         bond with [Child] it is impossible for [Father] to provide
         [Child] with the love, security and stability that [Child]
         deserves in his life.

(Id. at 5-7).    The record supports the court’s termination decision under

Section 2511(a)(1), (a)(2) and (b), based on parental incapacity and the

best interests of Child. See In re Z.P., supra. Therefore, we have no need

to disturb it.   Based upon the foregoing, we affirm the decree terminating

Father’s parental rights to Child.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2016




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