J-S47038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ADOPTION OF: A.L.S., A        :   IN THE SUPERIOR COURT OF
 MINOR                                :         PENNSYLVANIA
                                      :
                                      :
                                      :
                                      :
 APPEAL OF: A.S., FATHER              :        No. 613 MDA 2019

              Appeal from the Decree Entered March 20, 2019
               in the Court of Common Pleas of York County
                  Orphans' Court at No(s): 2018-0192(a)


 IN RE: ADOPTION OF: I.R.S., A        :   IN THE SUPERIOR COURT OF
 MINOR                                :         PENNSYLVANIA
                                      :
                                      :
                                      :
                                      :
 APPEAL OF: A.S., FATHER              :        No. 614 MDA 2019

              Appeal from the Decree Entered March 20, 2019
               in the Court of Common Pleas of York County
                   Orphans' Court at No(s): 2018-0193a


 IN RE: ADOPTION OF: H.A.S., A        :   IN THE SUPERIOR COURT OF
 MINOR                                :         PENNSYLVANIA
                                      :
                                      :
                                      :
                                      :
 APPEAL OF: A.S., FATHER              :        No. 615 MDA 2019

              Appeal from the Decree Entered March 21, 2019
               in the Court of Common Pleas of York County
                  Orphans' Court at No(s): 2018-0194(a)

BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                 FILED NOVEMBER 15, 2019
J-S47038-19


       A.S. (“Father”) appeals from the Decrees entered on March 20, 2019,1

granting the Petitions filed by the York County Office of Children, Youth and

Families (“CYF” or the “Agency”), seeking to terminate Father’s parental rights

to his minor female children, A.L.S. (born in May 2012), and I.R.S. (born in

July 2014), and his male child, H.A.S. (born in April 2016) (collectively, “the

Children”), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5),

(8), and (b).2 We affirm.

       In its Opinion pursuant to Pa.R.A.P. 1925(a), the trial court set forth the

factual background and procedural history of this appeal, which we adopt

herein. See Trial Court Opinion, 5/13/19, at 1-9.

       Relevantly, on July 26, 2017, CYF filed dependency Petitions as to the

Children pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6301, et seq. On August

9, 2017, the trial court held an adjudicatory hearing, and determined that the

Children were dependent under the definitions of “dependent child” set forth

at 42 Pa.C.S.A. § 6302(1) and (3).             Father and the Children’s maternal

grandparents, C.W. and R.W. (“Maternal Grandparents”), were present at the



____________________________________________


1 Regarding the Decree involuntarily terminating Father’s parental rights to
H.A.S., we observe that the date stamp on the Decree indicates that the
document was received by the clerk of courts on March 20, 2019. However,
the Decree was docketed on March 21, 2019.

2 We note that, after a hearing on April 12, 2019, the trial court confirmed the
consents to adoption filed by K.W., the Children’s mother (“Mother”). See
N.T., 3/20/19, at 5-8; and N.T., 4/12/19, at 4-11. Mother has not filed a brief
in this appeal, nor has she filed an appeal of her own.

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adjudicatory hearing. Mother was not present at the adjudicatory hearing.

The Children were residing with Maternal Grandparents in kinship placement,

and remained in that placement. In the permanency review Order entered on

July 3, 2018, the trial court ordered Father to maintain safe, stable, and

appropriate housing, and to maintain a stable and lawful income to support

the Children. Additionally, the trial court ordered Father to cooperate with

Justice Works Youth Care to work towards accomplishing the goals of the

family service plan.   Mother, Father, and Maternal Grandparents retained

medical and educational rights over the Children.

      A series of permanency review hearings and Orders followed, with the

Children remaining in kinship care with Maternal Grandparents. The Order

entered after the October 2, 2018 permanency review and dispositional

hearing changed the permanency goal for the Children from reunification to

adoption.   The Children remained in kinship placement with Maternal

Grandparents.

      On December 11, 2018, CYF filed Petitions seeking to involuntary

terminate Father’s parental rights to the Children.

      At the time of the next permanency review hearing on December 27,

2018, both Father and Mother were incarcerated at the York County Prison.

Mother was not present at the hearing. Father’s incarceration was based on

charges connected with an incident in November 2018, in which he was

accused of threatening an individual with a gun, followed by a stand-off, and


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J-S47038-19


then a police chase. Father was charged with fleeing police and possession of

a firearm, and had a number of charges pending in both York County and

Lancaster County at the time of the termination hearing.3 In the permanency

review Order entered on December 27, 2018, the trial court retained the goal

of adoption, and ordered that legal and physical custody remain with CYF. The

Children remained in kinship placement with Maternal Grandparents.

       On March 6, 2019, the trial court held a permanency review and

dispositional hearing, and entered an Order finding that Father had not

complied with the permanency plan.             The trial court retained the goal of

adoption, and ordered that legal and physical custody remain with CYF. The

Children remained in kinship placement with Maternal Grandparents.

       On March 20, 2019, the trial court held an evidentiary hearing on the

Petitions (“TPR hearing”).        CYF presented the testimony of Father’s York

County Probation/Parole Officer; a drug and alcohol monitoring specialist at

Families United Network; the program director at Catholic Charities Intensive

Families Services, representing the family advocate who worked with the

family; a reunification and permanency caseworker for CYF assigned to the

family. N.T., 3/20/19, at 21, 29, 34, and 41.           Father testified on his own


____________________________________________


3 The trial court admitted the criminal records relating to Father’s incarceration
from both York County and Lancaster County into evidence, and took judicial
notice of their contents. See N.T., 3/20/19, at 16-18.




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behalf. Id. at 83. The trial court examined Maternal Grandmother. Id. at

105. The trial court interviewed A.L.S., in camera, with only counsel present.4

       At the close of the hearing, the trial court stated as follows:

       THE COURT: All right. I am signing the final [D]ecree for the
       involuntary termination of the parental rights of Father. I won’t
       go into a lot of detail as to why, but I do want to say two things
       on the record.

             The first is I’ve had this case since it began in June of 2017.
       I have a file that’s four to five inches thick. I have notes from
       every hearing[,] and my recollection of Father’s life before [his]
       incarceration is substantially different from Father’s recollection in
       many regards.

             Secondly, I want to make it very clear that[,] when I
       changed the goal to adoption, it was October 2nd of 2018[,] and
       that was a month-and-a-half before [F]ather was incarcerated. I
       make much of this on the record to make it clear that adoption
       was the proper goal for these children before Father was
____________________________________________


4  We observe that the trial court appointed Barbara Orsburn Stump, Esquire
(“Attorney Stump”), to represent the Children’s legal interests, and Katherine
Louise Doucette, Esquire (“Attorney Doucette”), as the Children’s guardian ad
litem (“GAL”). See In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017)
(plurality) (requiring the appointment of separate legal counsel to represent
the legal interest of a child involved in a contested involuntary termination
proceeding). Attorney Doucette stated that I.R.S. wished to be adopted, as
did A.L.S., and that H.S., who was only two years old, had not indicated a
preference. N.T., 3/20/19, at 8; see also In re T.S., 192 A.3d 1080, 1092
(Pa. 2018) (holding that the trial court did not err in allowing the children’s
GAL to act as their sole representative during the termination proceeding,
because, at two and three years old, they were incapable of expressing a
preferred outcome). Attorney Stump stated that the female children had
indicated similarly, with I.R.S. stating that Maternal Grandparents were her
preference for permanency, and that Attorney Stump did not use the word
“adoption” in the discussion with I.R.S. N.T., 3/20/19, at 8-9. A.L.S., who
was seven years old at the time of the hearing, testified that she wished to
live permanently with Maternal Grandparents, and that she and her siblings
were doing well and liked living with Maternal Grandparents. Id. at 12-15.


                                           -5-
J-S47038-19


        incarcerated[,] for a whole lot of reasons that are set forth in that
        Order and from that hearing.

              I have taken judicial notice of the fact that Father’s charges
        are four different set[s] of charges in two different counties. They
        include felonies almost beyond what I could easily count. It is
        clear to me that Father is probably going to be in jail for at least
        another 5 to 10 years. It is just incomprehensible that he would
        obtain a not guilty verdict on four different sets of charges. It
        looked to me that it is going to be four different trials.

              I have no doubt that the bond between these children and
        their grandparents is very great. I of course did talk to [A.L.S.]
        just a few hours ago, and she did indicate that she wanted to be
        adopted by her [Maternal G]randparents. I find that the bond
        between Father and these children is somewhat strong but leaning
        [sic]. The bond with the [Maternal G]randparents is waxing or
        increasing. I find that there will be no harm in severing the bond,
        or substantial harm is [sic] severing the bond between Father and
        the [C]hildren. It’s definitely without any doubt in this court’s
        mind in the best interest of these [C]hildren for them to be
        adopted, and[,] accordingly[,] for Father’s parental rights to be
        involuntarily terminated.

N.T., 3/20/19, at 111-12.

        On March 20, 2019, the trial court entered its Decrees terminating

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

(2), (5), (8), and (b). On April 18, 2019, Father timely filed separate Notices

of appeal, along with separate Concise Statements of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), with regard to each of the

Children.5

        Father now raises two issues for our review:



____________________________________________


5   This Court, sua sponte, consolidated the appeals for review.

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J-S47038-19


       1. Did the [trial c]ourt err as a matter of law and/or abuse its
       discretion in terminating Father’s parental rights[,] when the
       Agency failed to meet its burden that termination of parental
       rights was warranted under 23 Pa.C.S.[A.] [§] 2511(a)(1), (8),
       and 2511(b)?

       2. Did the [trial c]ourt abuse its discretion in granting the Agency’s
       request to terminate Father’s parental rights?

Father’s Brief at 4 (issues numbered).6

       We will address Father’s claims together, as they are related. Father

claims that there was insufficient evidence to terminate his parental rights to

Children. See id. at 13-24. Father argues that the evidence established that

he had complied with the goals identified in his Family Services Plan, and was

employed.     Id. at 17-18, 20.       Father also contends that, despite the trial

court’s conclusion that he had failed to maintain stable housing, the Agency

never visited his home to determine whether it was appropriate. Id. at 18,

23. According to Father, he complied with the court-ordered services and

conditions and, although he was unable to complete a section 5329 evaluation,

he cooperated with the assigned team. Id. at 19. Additionally, Father asserts

that he and the Children share a strong bond. Id. at 20-21. Father further




____________________________________________


6 Although Father stated his issues somewhat differently in his Concise
Statement, we find that he preserved the issues for our review. See Krebs
v. United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (holding
that an appellant waives issues that are not raised in both his concise
statement of errors complained of on appeal and the statement of questions
involved in his brief on appeal).

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argues that the trial court improperly considered his pending criminal charges.

Id. at 23-24.

      In reviewing an appeal from an order terminating parental rights, we

adhere to the following standard:

             [A]ppellate courts must apply an abuse of discretion
      standard when considering a trial court’s determination of a
      petition for termination of parental rights. As in dependency
      cases, our standard of review requires an appellate court 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. As has been often
      stated, an abuse of discretion does not result merely because the
      reviewing court might have reached a different conclusion.
      Instead, a decision may be reversed for an abuse of discretion
      only upon demonstration of manifest unreasonableness, partiality,
      prejudice, bias, or ill-will.

      [U]nlike trial courts, appellate courts are not equipped to make
      the fact-specific determinations on a cold record, where the trial
      judges are observing the parties during the relevant hearing and
      often presiding over numerous other hearings regarding the child
      and parents. Therefore, even where the facts could support an
      opposite result, as is often the case in dependency and
      termination cases, an appellate court must resist the urge to
      second guess the trial court and impose its own credibility
      determinations and judgment; instead we must defer to the trial
      judges so long as the factual findings are supported by the record
      and the court’s legal conclusions are not the result of an error of
      law or an abuse of discretion.

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (internal citations

omitted).

      The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid.   In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

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Moreover, we have explained, “[t]he standard of clear and convincing

evidence is defined as testimony 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.” Id. (quoting In re J.L.C.,

837 A.2d 1247, 1251 (Pa. Super. 2003)).

      This Court may affirm the trial court’s decision regarding the termination

of parental rights with regard to any one subsection of section 2511(a), along

with consideration of section 2511(b). See In re B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004) (en banc). We will consider subsections 2511(a)(1) and

(b), which provide as follows:

      § 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.

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23 Pa.C.S.A. § 2511(a)(1), (b).

      With respect to subsection 2511(a)(1), our Supreme Court has held as

follows:

      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., 708 A.2d 88, 92 (Pa. 1988).

      Further, this Court has stated,

      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 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, 854-55 (Pa. Super. 2004) (citations omitted).

      Additionally, regarding incarceration and preservation of parental rights,

we have stated the following:

      [I]ncarceration of a parent does not, in itself, provide sufficient
      grounds for termination of parental rights; however, an
      incarcerated parent’s responsibilities are not tolled during his
      incarceration. … [P]arental duty requires that the parent not yield
      to every problem, but must act affirmatively, with good faith
      interest and effort, to maintain the parent-child relationship to the
      best of his ability, even in difficult situations.

In the Interest of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (citations

omitted). “Parental rights are not preserved by waiting for a more suitable or


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convenient time to perform one’s parental duties while others provide the child

with his or her physical and emotional needs.” In re K.Z.S., 946 A.2d 753,

759 (Pa. Super. 2008) (citations omitted).

        The focus in terminating parental rights under section 2511(a) is on the

parent, but, pursuant to section 2511(b), it is on the child. In re Adoption

of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc). In reviewing the

evidence in support of termination under section 2511(b), our Supreme Court

has stated as follows:

               [I]f the grounds for termination under subsection (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.[A.] § 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.” In
        re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620
        A.2d 481, 485 (Pa. 1993)], this 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 K.M., 53 A.3d at
        791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

        When evaluating a parental bond, “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., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal

citations omitted). Although it is often wise to have a bonding evaluation and

make it part of the certified record, “[t]here are some instances … where direct


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observation of the interaction between the parent and the child is not

necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d

at 762.

      Further,

      concluding a child has a beneficial bond with a parent simply
      because the child harbors affection for the parent is not only
      dangerous, it is logically unsound. If a child’s feelings were the
      dispositive factor in the bonding analysis, the analysis would be
      reduced to an exercise in semantics as it is the rare child who,
      after being subject to neglect and abuse, is able to sift through
      the emotional wreckage and completely disavow a parent. … Nor
      are we of the opinion that the biological connection between [the
      parent] and the children is sufficient in of itself, or when
      considered in connection with a child’s feeling toward a parent, to
      establish a de facto beneficial bond exists. The psychological
      aspect of parenthood is more important in terms of the
      development of the child and [his or her] mental and emotional
      health than the coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and

quotation marks omitted). Thus, the court may emphasize the safety needs

of the child.    See In re K.Z.S., 946 A.2d at 763 (affirming involuntary

termination of parental rights, despite existence of some bond, where

placement with mother would be contrary to child’s best interests).            “[A]

parent’s basic constitutional right to the custody and rearing of his or her child

is converted, upon the failure to fulfill his or her parental duties, to the child’s

right to have proper parenting and fulfillment of [the child’s] potential in a

permanent, healthy, safe environment.”         In re B.,N.M., 856 A.2d at 856

(internal citations omitted).




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      In its Opinion, the trial court addressed Father’s claim, and concluded

that there was clear and convincing evidence to terminate Father’s parental

rights to the Children under subsections 2511(a)(1) and (b). See Trial Court

Opinion, 5/13/19, at 14-20. After a careful review of the record, we conclude

that the trial court’s decision to terminate Father’s parental rights is supported

by competent, clear and convincing evidence in the record. In re Adoption

of S.P., 47 A.3d at 826-27. Thus, we find no abuse of discretion in the trial

court’s termination of Father’s parental rights to the Children, and affirm on

the basis of the trial court’s Opinion. See Trial Court Opinion, 5/13/19, at 14-

20.

      Decrees affirmed.

      Judge Nichols joins the memorandum.

      Judge Dubow concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2019




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