J-S42017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: P.W.B., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: W.B., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 445 EDA 2019


               Appeal from the Decree Entered, January 11, 2019,
              in the Court of Common Pleas of Philadelphia County,
                Family Court at No(s): CP-51-AP-0000479-2018.


    IN THE INTEREST OF: P.B., A MINOR :            IN THE SUPERIOR COURT OF
                                      :                 PENNSYLVANIA
                                      :
    APPEAL OF: W.B., FATHER           :
                                      :
                                      :
                                      :
                                      :
                                      :            No. 447 EDA 2019


                Appeal from the Order Entered, January 11, 2019,
              in the Court of Common Pleas of Philadelphia County,
                Family Court at No(s): CP-51-DP-0000535-2016.


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                        FILED SEPTEMBER 13, 2019

        W.B. (Father) appeals the decree granting the petition filed by the

Philadelphia Department of Human Services (DHS) that involuntarily

terminated his parental rights to 4-year-old P.W.B. (Child) pursuant to the
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Adoption Act.1 See 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). After

review, we affirm.

       We glean the relevant history from the trial court opinion filed pursuant

to Pa.R.A.P. 1925(a):

          DHS originally became involved with this family on February
          28, 2016, after DHS received a General Protective Services
          (GPS) report which alleged that police officers responded to
          a complaint regarding a domestic dispute at the home of
          Mother and Father; Father claimed that Mother locked him
          and Child out of the home and that Mother was under the
          influence of a substance and that Mother was not taking her
          prescribed medication; Child and Father had no resources
          for the night because Mother refused to open the door to
          the home for Child and Father; police were able to obtain a
          telephone number from Father for Paternal Grandfather;
          Child and Father were transported to Paternal Grandfather’s
          home. This report was determined to be valid.

          On March 2, 2016, DHS visited the home of Paternal
          Grandfather, where he and Child were present. Paternal
          Grandfather indicated he had taken Father to Friends
          Hospital and that Father was being treated for his substance
          abuse issues. Paternal Grandfather indicated that this was
          not the first time he had to care for Child because Father
          and Mother were unable to care for him. Father had
          previously been unable to care for Child while he was in
          treatment. On that same day, DHS obtained an Order of
          Protective Custody (OPC) for Child.

          On March 4, 2016, a shelter care hearing was held for Child.
          Father was not present for this hearing. The trial court lifted
          the OPC, ordered that the temporary commitment to DHS
          was to stand, and ordered Father to attended supervised
          visits with Child at the agency.



____________________________________________


1The trial court also terminated the rights of C.P. (Mother); that appeal is part
of a separate matter that is also before this panel.

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          On March 14, 2016, Child was adjudicated dependent and
          fully committed to DHS.

Trial Court Opinion (T.C.O.), 4/22/19, at 1-2 (footnotes and citations to the

record omitted).

       Over the course of the next 34 months, Father struggled to maintain his

sobriety for any meaningful length of time.      He was inconsistent with his

reunification goals. Father never completed treatment programs for his drug

addiction or his mental health. His visitation with Child was irregular. In June

2018, DHS filed a petition to involuntarily terminate Father’s parental rights.

After a hearing on January 11, 2019, the court granted the petition and

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

(8), and (b).2 Father filed this timely appeal. He presents three issues for our

review, which we reorder for ease of disposition:

              1. Whether the trial court committed reversible error
                 when it allowed inadmissible hearsay evidence
                 because [the court] did not properly apply the
                 business record exception. In addition, the business
                 records were not admitted into the record thereby
                 making the testimony as to the contents inadmissible?

              2. Whether the trial court committed reversible error
                 when it involuntarily terminated Father’s parental
                 rights where such determination was not supported by
                 clear and convincing evidence under Adoption Act. 23
                 Pa.C.S.A. § 2511(a)(1), (a)(2)?

              3. Whether the trial court committed reversible error
                 when it involuntarily terminated Father’s parental
____________________________________________


2 Child’s interests were properly represented pursuant to 23 Pa.C.S.A. §
2313(a).


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               rights without giving primary consideration to the
               effect that the termination would have on the
               developmental, physical and emotional needs of Child
               as required by Adoption Act. 23 Pa.C.S.A. § 2511(b)?

Father’s Brief at *4 (not paginated).

      We begin our discussion with Father’s contention that the court erred by

improperly admitting hearsay under the business records exception. The

decision of whether to admit or exclude evidence is within the sound discretion

of the trial court. In re A.J.R.-H., 118 A.3d 1157, 1166-1167 (Pa. 2018)

(citations omitted). A reviewing court will not disturb these rulings absent an

abuse of discretion. Id., 118 A.3d at 1167 (citation omitted). Discretion is

abused if, inter alia, the lower court overrides or misapplies the law. Id.

(citation omitted).

      In re A.J.R.-H concerned a case where a trial court admitted, all at

once, 167 exhibits offered by a Children and Youth Services (CYS) agency in

a termination of parental rights hearing. There, the local CYS engaged in a

common practice of proffering for admission all of its exhibits at the starts of

hearings under the auspices of the business records exception. Our Supreme

Court took issue.     Critically, the error was not the en masse admission of

exhibits, per se. Rather, the trial court erred because the admission did not




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meet the criteria of the business records exception.3 See generally In re

A.J.R.-H., 118 A.3d at 1167-1170.
____________________________________________


3 “Hearsay” is “a statement that (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).
Under the Pennsylvania Rules of Evidence, hearsay evidence is incompetent
and inadmissible unless it meets an exception set forth in the Rules or one
prescribed by this Court or statute. Pa.R.E. 802. One such exception to the
prohibition against hearsay, at issue in this case, is commonly known as the
business records exception, which permits the admission of:

          A record (which includes a memorandum, report, or data
          compilation in any form) of an act, event or condition if:

          (A) the record was made at or near the time by—or from
          information transmitted by—someone with knowledge;

          (B) the record was kept in the course of a regularly
          conducted activity of a “business”, which term includes
          business, institution, association, profession, occupation,
          and calling of every kind, whether or not conducted for
          profit;

          (C) making the record was a regular practice of that activity;

          (D) all these conditions are shown by the testimony of the
          custodian or another qualified witness, or by a certification
          that complies with Rule 902(11) or (12) or with a statute
          permitting certification; and

          (E) the opponent does not show that the source of
          information or other circumstances indicate a lack of
          trustworthiness.

Pa.R.E. 803(6). See also 42 Pa.C.S. § 6108(b) (“A record of an act, condition
or event shall, insofar as relevant, be competent evidence if the custodian or
other qualified witness testifies to its identity and the mode of its preparation,
and if it was made in the regular course of business at or near the time of the
act, condition or event, and if, in the opinion of the tribunal, the sources of
information, method and time of preparation were such as to justify its
admission.”).



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      Returning to the case at bar, we never arrive at Father’s claim that court

ran afoul of the business records exception, because Father did not preserve

the issue for our review. “Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).

      Father made no objection when DHS proffered its exhibits for admission.

Father made no objection when the testifying witnesses referenced the

exhibits or the information therein. The only objection to which Father directs

us occurred during an exchange with the DHS caseworker. See N.T., 1/11/19,

at 23-28. The issue there was whether Father overdosed while Child was in

his care. Insofar as we can discern, the confusion involves the timeframe of

the overdose and whether Child was in Father’s physical possession at the

time. That objection was ultimately sustained by the court. Meanwhile, the

fact that Father had experienced relapses had already made its way into the

record without objection.

      On appeal, Father seeks to bootstrap the evidentiary ruling about the

overdose to his argument that Father’s demonstrated history of drug abuse

was wrongly admitted at trial. The problem, however, is Father only objected

to one narrow issue during the testimony; he did not object when DHS

proffered – and the court admitted – DHS’s exhibits. The rules cannot be

clearer. Father cannot raise the matter for the first time on appeal, and thus

his first appellete issue is waived.

      We turn now to Father’s second issue, which concerns the initial prong

of the section 2511 analysis. Here, too, Father faces waiver. Termination of

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parental rights is governed by Section 2511 of the Adoption Act, 23 §§ 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).

     Regarding the first prong of the termination analysis under section

2511(a), the trial court terminated Father’s rights pursuant to subsections

2511(a)(1), (2), (5), (8).   In his concise statement, Father only appealed

subsection 2511(a)(2). In the Questions Involved section of his brief, Father

partially corrects his mistake and raises subsections 2511(a)(1) and (2). In

the body of his argument section, Father manages to reference all four

grounds upon which the court terminated: 2511(a)(1), (2), (5), and (8). We

conclude that Father waived his challenge to the court’s decision under

subsections 2511(a)(1), (5), and (8). “Issues not included in the [concise

statement of errors complained of on appeal] and/or not raised in accordance

with the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.

1925(b)(4)(vii).


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     Even if we declined to find waiver of Father’s claims under subsections

2511(a)(1), (5) and (8), we would still conclude the trial court did not abuse

its discretion in terminating Father’s rights under 23 Pa.C.S.A. § 2511(a)(2),

the only ground which Father properly preserved.

     Regarding subsection 2511(a)(2), we have explained:

        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.

        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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015) (citations,

internal quotation marks, and indentation omitted).

     The trial court made the following findings:

        Throughout the time that Child has been in the custody of
        DHS, Father’s SCP objectives were to attend the CEU for
        drug screens, comply with recommendations of his drug and
        alcohol program, maintain stable housing, make himself
        available for necessary home visits and appointments,
        attend visitation with Child, and complete a [parenting
        capacity evaluation]. Father was aware of his objectives.
        […]

        Father admitted that he has been inconsistent with regularly
        attending drug treatment. […] Father refuses to follow the
        orders of the trial court to provide random screens or even
        attended the CEU. When Father did complete a drug screen

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          in May 2018, Father’s creatinine was diluted.[4] […] CUA has
          been unable to verify if Father’s home is stable and
          appropriate. CUA has attempted to schedule a home
          assessment at Father’s home, but Father has not made the
          home available. […] [] Father completed Family School with
          Child after attending from July 2017 to April 2018, but the
          visits reverted back to supervised at the agency due to
          Father’s inconsistent attendance and previous drug relapse.
          Father has not provided a reasonable explanation from the
          inconsistent attendance. […] At the time of the [parental
          capacity evaluation], Father presented with the capacity to
          provide safety and permanency to Child, as long as he
          complied with the recommendations. Throughout the life of
          the case, Father has been unable to successfully complete
          all of his objectives, especially maintain a consistent period
          of sobriety.

T.C.O., at 10-12 (citations to the record omitted).

       The record reveals that Father has demonstrated a continued incapacity,

which has caused the Child to be without his parental care, and which he is

unable to remedy.          Upon our review, we opine that the trial court’s

determinations were supported by the record, and thus the court did not abuse

its discretion. Therefore, even if Father did not waive part of his challenge,

we would conclude, nevertheless, that the first prong of the termination

analysis has been satisfied.

       Next, we consider Father’s third and final issue, whether termination

was proper under section 2511(b).

       We review these claims mindful of our well-settled standard or review:

____________________________________________


4 The trial court noted that creatinine is a by-product produced by human
kidneys that enables the trial court to ascertain whether the individual is
“washing” his or her urine by drinking substances before drug testing to dilute
and mask any drugs in their urine. See T.C.O., at n.7.

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           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 quotations marks

omitted).

      With regard to section 2511(b), our Supreme Court has stated as

follows:

           [I]f the grounds for termination under section (a) are met,
           a court “shall give primary consideration to the
           developmental, physical and emotional needs and welfare
           of the child.” 23 Pa.C.S. § 2511(b). The emotional needs
           and welfare of the child have been properly interpreted to
           include [i]ntangibles such as love, comfort, security, and
           stability.... [T]his Court held that the determination of the
           child's “needs and welfare” requires consideration of the
           emotional bonds between the parent and child. The “utmost
           attention” should be paid to discerning the effect on the child
           of permanently severing the parental bond.

In re T.S.M., 71 A.3d at 267 (internal case citations omitted).

      While a parent's emotional bond with his or her child is a major aspect

of the section 2511(b) best-interest analysis, it is nonetheless only one of

many factors to be considered by the trial court when determining what is in



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the best interest of the child. In re A.D., 93 A.3d 888, 897 (Pa. Super. 2014)

(citing In re K.K.R.–S., 958 A.2d 529, 535–536 (Pa. Super. 2008). The mere

existence of an emotional bond does not preclude the termination of parental

rights. Id., 93 A.3d at 897-898; see also In re T.D., 949 A.2d 910 (Pa.

Super. 2008) (trial court's decision to terminate parents' parental rights was

affirmed where court balanced strong emotional bond against parents' inability

to serve needs of child). Rather, the trial court must examine the status of

the bond to determine whether its termination “would destroy an existing,

necessary and beneficial relationship.” Id. at 898 (citation omitted). Beyond

the presence of the bond, 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.

See In re Adoption of C.D.R., 111 A.3d at 1219.

      Father argues that he shares a bond with Child. He points to the fact

that Child refers to him as “dad.”    Father maintains he has attempted to

maintain a relationship, as evidenced by his taking snacks and games to the

visits with Child. Father also argues he should not be penalized because he

was denied benefits.

      The court acknowledged the presence of a bond, but the question is

whether that bond is worth preserving.        Here, Father’s drug abuse and

irregular visits with Child had caused the visitations to be scaled back to

supervised. Although Father appeared appropriate with Child, and had spent

enjoyable time with Child, this cannot be conflated with providing necessary

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security and stability. While Child refers to Father as “dad”, Child also referred

to the foster parent as “mommy”, the other child in the foster home as his

brother, and, the foster family as his real family.

      Section 2511(b) does not construe “needs and welfare” in financial

terms. “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.A. § 2511(b).     Thus, the disparate income between Father and the

foster parent is irrelevant.      What is relevant, and indeed essential to this

portion of the analysis, is the fact that Father’s lack of progress has caused

Child to without parental care for the better part of three years – the vast

majority of Child’s short life.

      We observe that a parent’s constitutional right to the custody and child

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. See In re Z.P., 994 A.2d 1108,

1120 (Pa. Super. 2010) (citation omitted).         Following that trajectory, our

Supreme Court has determined that children, who, like Child, are old enough

to verbalize a preferred outcome, should have a voice in this discussion. See

In re T.S., 192 A.3d 1080, 1092 (Pa. 2018); see also In re Adoption of

L.B.M., 161 A.3d 172 (Pa. 2017). Here, Child has been without parental care

for years and is in need of permanency. Child has also expressed a desire to

remain with the foster family. The court was within its discretion to conclude

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that Child would not suffer irreparable harm if the bond between Father and

Child was severed.

     Regarding the second prong of the termination analysis, the trial court

concluded that DHS provided clear and convincing evidence that termination

would best serve Child’s needs and welfare.        We conclude that this

determination was not an abuse of discretion.

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/19




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