J-S25045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: S.A.S., JR.                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: S.S., SR., NATURAL FATHER

                                                       No. 38 WDA 2015


                   Appeal from the Order December 10, 2014
               in the Court of Common Pleas of Lawrence County
                      Orphans' Court at No.: 20004 of 2014


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                FILED JUNE 02, 2015

        S.S., Sr. (Father) appeals the order of the Court of Common Pleas of

Lawrence County, entered on December 10, 2014, that terminated his

parental rights to his son, S.A.S., Jr. (Child), born in October of 2011. We

affirm.1

        Lawrence County Children and Youth Services (CYS) first became

involved with Child when Father and Mother took him to a hospital on July

24, 2012, “and claimed worms were coming out of [his] skin.”               (N.T.

Involuntary Termination, 5/08/14, at 18).        The hospital referred Child to

CYS, which took legal and physical custody of Child on July 25, 2012. The
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    N.R. (Mother) consented to the termination of her parental rights to Child.
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trial court adjudicated Child dependent and placed him in the custody and

control of CYS on August 9, 2012. CYS placed Child in kinship care with the

consent of his parents.      Child has resided in the same kinship home

throughout his placement and has had no contact with Father since October

17, 2012.

      CYS created a Child Permanency Plan (CPP) for Father that Father

signed on September 19, 2012. The CPP goals established for Father were:

(1) complete a parenting course through Children’s Advocacy Center; (2)

obtain   a   drug   and   alcohol   assessment    and   follow   any   and   all

recommendations; (3) obtain and maintain a safe, stable home environment

for himself and Child; (4) visit Child regularly; and (5) sign necessary

releases for CYS.

      Father reviewed the plan with CYS caseworker, Gary Zarilla, and

informed him that he would soon go to jail, and that he would not be able to

complete the goals of the plan prior to his incarceration.

      Father was incarcerated in November 2012 and, in January of 2013,

was sentenced to a term of incarceration of not less than three to not more

than six years related to his operation of a methamphetamine lab in the

home. Father’s anticipated release date is November of 2015. CYS revised

Father’s CPP goals after his incarceration.      Father’s new goals were: (1)

address his drug and alcohol use; (2) learn parenting skills; (3) demonstrate

financial and personal stability; (4) learn to plan long-term; and (5)


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demonstrate mental and emotional stability. Father was not able to begin

work on his goals while at SCI Camp Hill but had to wait until he arrived at

his “home” prison of SCI-Mercer.

       Father owns a house in New Castle, Pennsylvania, where he will reside

upon his release from prison, and he expects to have a job upon his release.

       CYS filed its petition to terminate Father’s parental rights on January

22, 2014, pursuant to 23 Pa.C.S.A. §§ 2511(a)(1),(2), (8), and (b).        The

trial court entered its decree terminating Father’s parental rights pursuant to

23 Pa.C.S.A. §§ 2511(a)(1), (2), (8), and (b) on December 10, 2014.

Father timely appealed on January 2, 2015, and filed his statement of errors

complained of on appeal on January 6, 2015.2

       Father raises the following questions on appeal:

       [1] Whether the [trial] court erred in finding that [CYS] proved
       by clear and convincing evidence that sufficient grounds existed
       to terminate the parental rights of [] Father[?]

       [2] Whether the [trial] court erred in not finding that [CYS]
       failed to provide [] Father with reasonable efforts to promote
       reunification with [Child?]

       [3] Whether the [trial] court erred in finding that [CYS]
       provided [sic] by clear and convincing evidence that it is in the
       best interest of [Child] that the rights of [] Father be
       terminated[?]

____________________________________________


2
  Because there was no objection or claim of prejudice from Appellee, we
have accepted the late filing in reliance on our decision in In re K.T.E.L.,
983 A.2d 745 (Pa. Super. 2009).



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(Father’s Brief, at 5).

      Our standard of review is as follows:

            . . . In an appeal from an order terminating parental
      rights, our scope of review is comprehensive: we consider all the
      evidence presented as well as the trial court’s factual findings
      and legal conclusions. However, our standard of review is
      narrow: we will reverse the trial court’s order only if we conclude
      that the trial court abused its discretion, made an error of law, or
      lacked competent evidence to support its findings. The trial
      judge’s decision is entitled to the same deference as a jury
      verdict.

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

Further, we have stated:

            Where the hearing court’s findings are supported by
      competent evidence of record, we must affirm the hearing court
      even though the record could support an opposite result.

                   We are bound by the findings of the trial court
            which have adequate support in the record so long
            as the findings do not evidence capricious disregard
            for competent and credible evidence. The trial court
            is free to believe all, part, or none of the evidence
            presented, and is likewise free to make all credibility
            determinations and resolve conflicts in the evidence.
            Though we are not bound by the trial court’s
            inferences and deductions, we may reject its
            conclusions only if they involve errors of law or are
            clearly unreasonable in light of the trial court’s
            sustainable findings.

In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).

      In order to affirm the termination of parental rights, this Court need

only agree with any one subsection of Section 2511(a). See In re B.L.W.,

843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863 A.2d

1141 (Pa. 2004).

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     Requests to have a natural parent’s parental rights terminated are

governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:

     § 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.

                                  *    *    *

     (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), (b).

     It is well-settled that a party seeking termination of a parent’s rights

bears the burden of proving the grounds to so do by “clear and convincing

evidence,” a standard that requires evidence that is “so clear, direct,

weighty, and convincing as to enable the trier of fact to come to a clear

conviction, without hesitance, of the truth of the precise facts in issue.” In

re T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citation omitted). Further,



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           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 or
     her physical and emotional needs.

In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation

omitted).

     To terminate parental rights pursuant to section 2511(a)(1), the

person or agency seeking termination must demonstrate “through clear and

convincing evidence that: for a period of at least six months prior to the

filing of the petition, the parent’s conduct demonstrate[d] a[] settled

purpose to relinquish parental rights or that the parent has refused or failed

to perform parental duties.”   In re Adoption of M.E.P., 825 A.2d 1266,

1272 (Pa. Super. 2003) (citing 23 Pa.C.S.A. § 2511(a)(1)).

     With respect to section 2511(a)(1), our Supreme Court has held:

           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 or her 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 Adoption of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998) (citation

omitted). Further,

     . . . the 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

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        facing termination of his or her 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, 872

A.2d 1200 (Pa. 2005) (citations omitted).

        The Adoption Act3 provides that a trial court “shall give primary

consideration to the developmental, physical and emotional needs and

welfare of the child.”      23 Pa.C.S.A. § 2511(b).    It does not make specific

reference to an evaluation of the bond between parent and child, but our

case law requires the evaluation of any such bond.         See In re E.M., 620

A.2d 481, 483 (Pa. 1993). However, this Court has held that the trial court

is not required by statute or precedent to order a formal bonding evaluation

performed by an expert.          See In re K.K.R.-S., 958 A.2d 529, 533 (Pa.

Super. 2008).

        Concerning incarcerated persons, our Supreme Court has stated:

        . . . 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 essential parental care, control or subsistence and that
        the causes of the incapacity cannot or will not be remedied.

                                       *       *   *

        . . . [W]e 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
____________________________________________


3
    23 Pa.C.S.A. §§ 2101-2938.



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       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). See e.g. Adoption of J.J., 515 A.2d [883,] 891
       [(Pa. 1986)] (“[A] parent who is incapable of performing
       parental duties is just as parentally unfit as one who refuses to
       perform the duties.”); [In re] E.A.P., 944 A.2d [79,] 85 [(Pa.
       Super. 2008)] (holding termination under § 2511(a)(2)
       supported by mother’s repeated incarcerations and failure to be
       present for child, which caused child to be without essential care
       and subsistence for most of her life and which cannot be
       remedied despite mother’s compliance with various prison
       programs).     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 § 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., 47 A.3d 817, 828, 830-31 (Pa. 2012).4

       In response to Father’s first issue, whether CYS presented sufficient

evidence to terminate his parental rights pursuant to subsection (a), we

quote the trial court with approval where it stated:

             Gary Zarilla, the [CYS] caseworker assigned to [Child’s]
       case, testified with respect to Father’s compliance with the
       [CPP]. Father wrote to CYS upon placement in his assigned
       penitentiary. Father informed CYS that he had signed up for a
       parenting class, but was placed on a waiting list for the class. To
____________________________________________


4
  The Supreme Court cited its decision in In re: Adoption of McCray, 331
A.2d 652, 655 (Pa. 1975), for the proposition that termination may be
appropriate for an incarcerated parent who has failed to perform his parental
duties for a six-month period of time. See In re Adoption of S.P., supra
at 828.



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      date, Father has not completed a parenting class. Father did not
      complete a drug and alcohol assessment, and he has not
      maintained suitable housing for [Child]. Father’s last visit with
      [Child] was on October 17, 2012, one month prior to his
      incarceration. During the three visits Father had with [Child]
      prior to [his] incarceration, [he] failed to behave appropriately.
      Furthermore, Father failed to provide CYS with releases for his
      service providers.

             On May 1, 2013, Father was provided with a modified
      [CPP]. The second plan was designed to accommodate Father’s
      ability to reach the goals during [his] incarceration. Under the
      second [CPP], Father had to inquire as to the availability of drug
      and alcohol services at his current facility; take all necessary
      steps to register for any drug and alcohol classes that may be
      available; learn parenting skills; demonstrate financial and
      personal stability; develop long-term planning goals and display
      mental and emotional stability.

            Father did complete a drug and alcohol assessment at the
      Mercer State Correctional Institution, but documentation of
      Father’s compliance indicates that Father completed the
      assessment following the filing of the Petition for Involuntary
      Termination. Similarly, Father signed up for parenting classes
      while incarcerated, but Father was put on a wait list for this
      program. Father did not establish any programs [sic] towards
      achieving any of the remaining goals under the second [CPP].

(Trial Court Opinion, 12/10/14, at 8-9).

      The record demonstrates that Father’s incarceration was not a factor in

his refusal or inability to parent Child.   Therefore, Father’s first claim is

without merit.

      We also find the trial court’s reasoning persuasive in its response to

Father’s second claim that CYS did not make reasonable efforts to reunite

him with Child:

      . . . [The trial c]ourt has not made any finding that CYS has
      failed to provide Father with reasonable efforts to promote

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      reunification with [Child]. In fact, the record clearly supports the
      alternative. In this case, CYS initially established a [CPP] with
      Father. Father displayed poor parenting skills and no compliance
      with any of the established goals.          When Father became
      incarcerated and his circumstances changed, CYS established a
      second [CPP] that reevaluated Father’s goals based upon his
      new situation. Again Father failed to establish any significant
      compliance with the second [CPP].

(Id. at 12).

      Our Supreme Court recently rejected the argument that the provision

of reasonable efforts by the county children’s services agency is a factor in

termination of the parental rights of a parent to a child. See In re D.C.D.

105 A.3d 662, 673-74, 676 (Pa. 2014) (rejecting suggestion that an agency

must provide reasonable efforts to enable parent to reunify with child prior

to termination of parental rights).     Thus, based on our Supreme Court’s

holding in In re D.C.D., we find no merit to Father’s second argument.

      Furthermore, the record establishes that termination is in the best

interest of the Child. Child has been in placement with his half-siblings since

he was nine months old. At the time of the hearing in this matter, he was

three years of age. Child has had no contact with Father since October 17,

2012, more than two years prior to the termination hearing.                   Our

examination of the record reveals that there is sufficient evidence to permit

the trial court to conclude that there is no evidence of a bond between

Father and Child. “[I]n cases where there is no evidence of a bond between

a parent and child, it is reasonable to infer that no bond exists.”          In re

Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (citation omitted).

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     Our review of the record reveals that the trial court’s decision to

terminate Father’s parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1)

and (b) is supported by clear and convincing evidence, and that there was

no abuse of the trial court’s discretion. See In re L.M., supra at 511.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




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