J-S34018-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: C.G.W., A MINOR              IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: L.S., FATHER

                                                      No. 3636 EDA 2016


                 Appeal from the Order Dated October 28, 2016
              In the Court of Common Pleas of Philadelphia County
                 Family Court at No(s): CP-51-AP-0000598-2016

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                               FILED JUNE 27, 2017

        L.S. (“Father”) appeals from the October 28, 2016 order that

involuntarily terminated his parental rights to his minor daughter, C.G.W.

(“Child”). Upon careful review, we affirm.

        On April 7, 2015, the Department of Human Services [(“DHS”)]
        received a Child Protective Services Report (“CPS”) alleging that
        Child was being sexually abused by . . . the Child’s mother
        (“Mother”) and paramour. Father had never lived with Mother
        and Child and there were no allegations that Father was
        responsible for any abuse. Father’s only contact with Child was
        that he was named as the Child’s father on Child’s birth
        certificate. Father had a history of severe mental illness and had
        lived since 2005 at an assisted living center. On April 7, 2015,
        DHS obtained an Order of Protective Custody (“OPC”) for Child
        and Child was placed in foster care through the Juvenile Justice
        Center (“JJC”).     On May 8, 2015, Child was adjudicated
        dependent by the Honorable Jonathan Irvine. On October 25,
        2015, [the Community Umbrella Agency (“CUA”), Turning Points
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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      for Children (“TPFC”),] held a revised Single Case Plan (“SCP”)
      [meeting,] and Father’s objective was that he make his
      whereabouts known to CUA. On May 16, 2016, CUA held a
      revised SCP meeting and Father’s goals remained unchanged.
      On June 7, 2016, Father attended a permanency review hearing
      during which Child was ordered to remain [dependent]. Since
      the inception of the matter Father failed to cooperate with
      CUA/DHS as to notification of his whereabouts. On May 12,
      2016, Mother signed an agreement to voluntarily relinquish her
      rights to [the] Child. On September 22, 2016, DHS filed the
      underlying Petition to Terminate Father’s Parental Rights to [the]
      Child.

Trial Ct. Op., 2/15/17, at 2.

      “On October 28, 2016, the [trial c]ourt held a hearing on the Petition

to Terminate the Parental Rights . . . Father was present at the hearing and

represented by counsel.”        Trial Ct. Op. at 1.   During the hearing, DHS

presented testimony that Father had not completed domestic violence

counseling and mental health treatment. N.T., 10/28/16, at 14. Father had

also failed to provide DHS or the CUA with proof of his residence.

      “After a full hearing on the merits, the [trial c]ourt found clear and

convincing evidence to involuntarily terminate the parental rights of

Father[.]”   Trial Ct. Op. at 1.     The decree of involuntary termination of

parental rights, at 2, also allowed “[t]he adoption of the [Child to] continue

without further notice to or consent of [Father]” and authorized DHS “to give

consent to the adoption of [the Child].”

      On November 28, 2016, Father, pro se, filed a notice of appeal, even

though he was still represented by counsel. Father did not file and serve a

concise statement of errors complained of on appeal with the notice of

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appeal.   See Pa.R.A.P. 1925(a)(2)(i).      On December 5, 2016, this Court

ordered Father to file a statement of errors by December 15, 2016.           On

December 14, 2016, Father’s counsel sent a letter to this Court, stating that

she had been having difficulty contacting and communicating with Father,

due to his mental health issues and illiteracy; she requested leniency as to

deadlines. On December 20, 2016, this Court remanded this action to the

trial court for thirty days to determine whether Father remained represented

by counsel and whether any additional action was required to protect

Father’s appellate rights.

      On January 19, 2016, Father’s same counsel filed the following

statement of errors:

      The [trial c]ourt erred in rejecting the Findings of Fact and
      Conclusions of Law proposed by [Father] after the hearing in
      these proceedings. [DHS] did not meet their burden by clear
      and convincing evidence that [Father]’s rights should be
      terminated[. Father] was compliant with the objectives stated in
      court orders and began visiting [the Child] as soon as he was
      able.

      In addition, the [trial c]ourt erred in finding that [DHS] exercised
      reasonable efforts to provide notice to [Father] and include him
      in [the Child]’s case plan.         [Father] has resided at [the
      Community Organization for Mental Health and Retardation
      (“COMHAR”)] since 2003. Neither the facility nor [Father]’s
      worker were contacted in attempt to reach him.

Father’s brief raises the following issues for our review:

      1.   Whether the [t]rial [c]ourt erred by terminating the
      parental rights of [Father] under 23 Pa.C.S.A. § 2511(a)(1)[.]

      2.   Whether the [t]rial [c]ourt erred by terminating the
      parental rights of [Father] under 23 Pa.C.S.A. § 2511(a)(2)[.]

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       3.    Whether the [t]rial [c]ourt erred by finding, under 23
       Pa.C.S.A. §2511(b), that termination of [Father]’s parental rights
       best serves the [C]hild’s developmental, physical and emotional
       needs and welfare[.]

       4.    Whether DHS failed to use reasonable efforts to reunite
       the [C]hild with [F]ather.

Father’s Brief at 4.

       Preliminarily, we note that Father did not include any challenge to

DHS’s reunification efforts in his statement of errors complained of on

appeal. An issue that is not included in a Rule 1925(b) statement cannot be

raised for the first time on an appeal to this Court.   See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”), 1925(b); Commonwealth v. Castillo, 888 A.2d

775, 780 (Pa. 2005) (“Any issues not raised in a Pa.R.A.P.1925(b) statement

will be deemed waived”). Hence, we may not address his fourth issue.1

____________________________________________
1
   The claim in Father’s statement of errors that “the [trial c]ourt erred in
finding that [DHS] exercised reasonable efforts to provide notice to [Father]
and include him in [the Child]’s case plan” was not included among the
issues in his brief to this Court. See Father’s Brief at 4. Even if we construe
that complaint to overlap with (and therefore prevent waiver of) the
reunification issue set forth in Father’s brief, Father still would not be
entitled to relief. CUA contacted Father in August 2015 and informed him
that the Child was in foster care. N.T., 10/28/16, at 24-25. However,
Father did not request any visitation with the Child. Id. at 25. In May
2016, CUA sent Father a letter explaining that his parental rights may be
terminated. Id. at 26. “[P]rior to that time, [Father] confirmed that he had
been receiving correspondence.” Id. at 26. Only after receiving the notice
about the potential termination of his parental rights did Father ask CUA for
contact with the Child. Id. Father presented no evidence contradicting this
history. Thus, Father is not entitled to relief on his claim that reasonable
(Footnote Continued Next Page)

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      We consider Father’s remaining issues in light 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, brackets, and

quotation marks omitted).

      We summarize all of Father’s arguments together.         Father contends

that the evidence was insufficient for subsections (a)(1), (a)(2), and (b).

Father’s Brief at 12. Father argues that he “did not neglect, abuse, or reject

his child, and there is insufficient evidence to show that he lacked the

capacity to parent” the Child. Id. at 14. He refers to testimony that he was

“moderately compliant” with the goals set forth by DHS and there was no

court order obligating him to comply with those goals.       Id. at 13. Father

asserts he met with the Child at least “75% of the time” and should not be
                       _______________________
(Footnote Continued)
efforts were not made to contact and include him. Father’s challenge to
DHS’s reunification efforts fails because reasonable efforts at reunification
are not required to support the grant of a petition for termination of parental
rights. In re D.C.D., 105 A.3d 662, 673-74 (Pa. 2014) (citing 42 Pa.C.S. §
6351(f)); In re J.J.L., 150 A.3d 475, 482-83 (Pa. Super. 2016).


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faulted for not completing his parenting classes. Id. at 13-14. Father also

asserts that the trial court “erred by finding, under 23 Pa.C.S.A. § 2511(b),

that termination of [his] parental rights best serves the development of the

[C]hild’s physical and emotional needs and welfare.” Id. at 14. Specifically,

he maintains that he was given insufficient time to form a parental bond

with the Child, and thus his rights were prematurely terminated. Id.

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S. §§ 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). The

burden is on the petitioner seeking termination to prove by clear and

convincing evidence that the asserted statutory grounds for seeking the

termination of parental rights are met.   In re R.N.J., 985 A.2d 273, 276

(Pa. Super. 2009). We will affirm if we agree with the trial court’s decision

as to any one subsection of 23 Pa.C.S. § 2511(a), and its decision as to


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Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa. Super.) (en banc),

appeal denied, 863 A.2d 1141 (Pa. 2004); see In re N.A.M., 33 A.3d 95,

100 (Pa. Super. 2011).

       Here, we affirm the trial court’s decision to terminate Father’s parental

rights under subsections 2511(a)(2) and (b), which provide:

       (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.

23 Pa.C.S. § 2511(a)(2), (b).2

       After careful review of the record, the parties’ briefs, and the trial

court’s decision, we affirm on the basis of the trial court opinion by the

Honorable Vincent Furlong. See Trial Ct. Op. at 3-6 (holding that: (1) the
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2
   Father also challenges the sufficiency of evidence with respect to
termination under Section 2511(a)(1). Because we affirm the trial court’s
decision under subsection (a)(2), we need not address his other subsection
(a) arguments. See B.L.W., 843 A.2d at 384.


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record demonstrates Father’s ongoing unwillingness to provide care or

control for the Child or to perform any parental duties and his failure to

remedy the conditions that brought the Child into care; (2) Father’s

unwillingness to cooperate with social services as to mental health and other

counselling, as well as his housing in an assisted living program for people

with mental illness, demonstrated Father’s inability, due to his lifelong

mental illness, to remedy the conditions that led to the Child being

adjudicated dependent on May 8, 2015; and (3) the testimony of the DHS

witness was credible that there was no bond between the Child and Father,

so terminating Father’s parental rights would not cause the Child irreparable

harm). Because we discern no abuse of discretion or error of law, we affirm

the order below. See T.S.M., 71 A.3d at 267. The parties are instructed to

include the attached trial court decision in any filings referencing this Court’s

decision.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2017




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