In the Interest of: K.J.C.M., a Minor

J-S60001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: K.J.C.M., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA

APPEAL OF: K.S.M., FATHER
No. 834 EDA 2015

Appeal from the Decree February 10, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000069-2015

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

APPEAL OF: K.S.M., FATHER
No. 857 EDA 2015

Appeal from the Decree February 10, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
51-FN-002571-2013
CP-51-AP-0000067-2015

IN THE INTEREST OF: K.R.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: K.S.M., FATHER
No. 891 EDA 2015

Appeal from the Decree February 10, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000066-2015

IN THE INTEREST OF: K.F.-W.M., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA

APPEAL OF: K.S.M., FATHER
No. 919 EDA 2015

Appeal from the Decree February 10, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
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CP-51-AP-0000068-2015
FID#51-FN-002571-2013

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 11, 2015

Appellant, K.S.M., (“Father”), appeals from the decrees dated February

10, 2015, terminating his parental rights to K.J.C.M. (born in January of

2011), K.R.M. (born in May of 2009), K.F.-W.M. (born in February of 2008),

and K.S.M. (born in July of 2006) (collectively “the Children”) and changing

the Children’s permanency goals to adoption under section 6351 of the

Juvenile Act, 42 Pa.C.S. § 6351.1 We affirm.2

On June 19, 2013, the Children became known to the Philadelphia

Department of Human Services (“DHS”) after receiving General Protective

Services (“GPS”) reports alleging Mother brought the Children to DHS. The

reports stated that Mother was overwhelmed and lacked proper resources,

including food and clothing for the Children. At that time, Father had been

incarcerated since June 11, 2013, due to domestic violence against Mother.

He was incarcerated based on convictions of aggravated assault,

endangering the welfare of children, recklessly endangering another person,

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1
B.B.’s (“Mother”) parental rights to the Children were terminated on
February 10, 2015. Mother is not a party to this appeal nor did she file a
separate appeal.
2
We point out that the trial court failed to forward the record in this matter
to this Court in a timely fashion as dictated by the children’s fast track rules.

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simple assault, possession of an instrument of crime, and terroristic threats.

Father remained incarcerated until he was released to a halfway house on

January 16, 2015.

On June 19, 2013, DHS obtained Orders of Protective Custody (“OPC”)

for the Children, and the Children were taken into the care of DHS.

Following the OPC, K.R.M. and K.F.-W.M. were placed with C.L., the

Children’s maternal uncle (“Maternal Uncle”). K.S.M. and K.J.C.M. were

placed in the care of L.B., the Children’s paternal uncle (“Paternal Uncle”)

and A.B., the Children’s paternal aunt (“Paternal Aunt”). On July 2, 2013,

the Children were adjudicated dependent, and the trial court ordered Father

to complete a Family Service Plan (“FSP”). On July 31, 2013, Father’s FSP

objectives were (1) to maintain contact with the DHS worker while in jail;

(2) to contact the DHS caseworker when he was released; and (3) to

maintain visitation with the Children.

On January 26, 2015, DHS filed petitions to involuntarily terminate

Father’s parental rights to the Children. On February 10, 2015, the trial

court held a hearing on the termination petitions. At the termination

hearing, Marleihia Harper, a DHS social worker; Heather Allen, a caseworker

from Delta Community Support; Malik Charles, a Bethanna Social Worker;

Father; and Mother testified. On February 10, 2015, the trial court entered

its decrees terminating Father’s parental rights pursuant to 23 Pa.C.S.

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§ 2511(a)(1), (2), (5), (8), and (b), and changing the Children’s

permanency goals to adoption.

On March 12, 2015, Father timely filed notices of appeal, along with

concise statements of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). Father raises the following issue on appeal.

1. Whether the trial court erred in terminating Father[‘s]
parental rights where the record established Father’s
temporary absence from [the] Children’s lives was due to a
[eleven and a half] to [twenty-three] month county jail
sentence he was doing; he was in full compliance with his
only FSP objective during his [twenty] month jail term; and
where he contacted DHS upon his release to reestablish
physical contact with [the] Children?

Father’s Brief at 2.3

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3
In Father’s “Statement of Matters Complained on Appeal,” Father raises the
issues that “the evidence established that the developmental, physical and
emotional needs of [the Children] would be best served by reunification with
Father and, therefore, termination was not warranted.” Father did not set
forth or suggest this issue in his Statement of Questions Involved in his
brief. See Krebs v. United Refining Company of Pennsylvania, 893
A.2d 776, 797 (Pa. Super. 2006) (stating that any issue not set forth in or
suggested by an appellate brief’s Statement of Questions Involved is
deemed waived). However, we will review whether termination of parental
rights would best serve the developmental, physical and emotional needs of
the Children. In re C.L.G., 956 A.2d 999, 1004 (Pa. Super. 2008) (en banc)
(citation omitted) (stating that, only after determining that a parent’s
conduct warrants termination under subsection (a) must a court engage in
the analysis under subsection (b)). Father, however, has waived any
challenge to the change of the Children’s permanency goals to adoption, as
he failed to raise the issue in his Concise Statement and his Statement of
Questions Involved in his brief.

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Our standard of review regarding orders terminating parental rights is

as follows:

When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an
abuse of discretion, an error of law, or insufficient evidentiary
support for the trial court’s decision, the decree must stand.
Where a trial court has granted a petition to involuntarily
terminate parental rights, this Court must accord the hearing
judge’s decision the same deference that we would give to a
jury verdict. 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 S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, 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.

Id. at 806. We have previously stated: The 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.” In re J.L.C. &

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

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. In re M.G., 855 A.2d 68, 73-74 (Pa.

Super. 2004). If competent evidence supports the trial court’s findings, we

will affirm even if the record could also support the opposite result. In re

Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Additionally,

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this Court “need only agree with [the trial court’s] decision as to any one

subsection in order to affirm the termination of parental rights.” In re

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 581

Pa. 668, 863 A.2d 1141 (2004).

In terminating Father’s parental rights, the trial court relied inter alia

upon Sections 2511(a)(1), (2) and (b) of the Adoption Act which provide as

follows:

(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 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. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not

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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. § 2511.

We have explained this Court’s review of a challenge to the sufficiency

of the evidence to support the involuntary termination of a parent’s rights

pursuant to section 2511(a)(1) as follows:

To satisfy the requirements of section 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 [s]ection 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 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
[s]ection 2511(b).

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

omitted).

Regarding the definition of “parental duties,” this Court has stated:

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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 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 or her
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 . . . her physical and emotional
needs.

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

Pa. 718, 872 A.2d 1200 (2005) (internal citations omitted).

With respect to section 2511(a)(2), the grounds for termination of

parental rights, 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, 337 (Pa.Super. 2002). Nevertheless, parents are required to

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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 In re Geiger, 459 Pa. 636, 331 A.2d 172

(1975). There 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).

Parental duty requires that the parent act affirmatively with a good

faith interest and effort, and not yield to every problem, in order to maintain

the parent-child relationship to the best of his or her ability, even in difficult

circumstances. In re E.M., 908 A.2d 297, 306 (Pa. Super. 2006). A trial

court can find an incapacity to parent by finding affirmative misconduct, acts

of refusal to parent as well as an incapacity to parent. In re S.C.B., 990

A.2d 762, 771 (Pa. Super. 2010).

On appeal, Father argues that the trial court erred in terminating his

parental rights to the Children. Father’s Brief at 5. Father argues that he

was not afforded the time required under the law, six months, to assess his

parenting, as required to address the statutory issues, as he was released

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from prison just twenty days before trial was held in the instant matter, after

only a twenty-month sentence. Id. With regard to a parent’s incarceration,

in In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme Court

reiterated the standard of analysis pursuant to section 2511(a)(1) for

abandonment and added as follows:

Applying [In re: Adoption of McCray,] the provision for
termination of parental rights based upon abandonment, now
codified as § 2511(a)(1), we noted that a parent “has an
affirmative duty to love, protect and support his child and to
make an effort to maintain communication and association with
that child.” [460 Pa. 210, 217, 331 A.2d 652, 655]. We
observed that the father’s incarceration made his performance of
this duty “more difficult.” Id.

***

[A] parent’s absence and/or failure to support due to
incarceration is not conclusive on the issue of abandonment.
Nevertheless, we are not willing to completely toll a parent’s
responsibilities during his or her incarceration. Rather, we must
inquire whether the parent has utilized those resources at his or
her command while in prison in continuing a close relationship
with the child. Where the parent does not exercise reasonable
firmness in declining to yield to obstacles, his other rights may
be forfeited.

In re Adoption of S.P., 47 A.3d at 828 (quoting In re: Adoption of

McCray, 331 A.2d at 655 (footnotes and internal quotation marks omitted).

Further, the Supreme Court stated, “incarceration neither compels nor

precludes termination of parental rights.” In re Adoption of S.P., 47 A.3d

at 828 (adopting this Court’s statement in In re Z.P., 994 A.2d 1108, 1120

(Pa. Super. 2010)).

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The trial court found that, during six months prior to the filing of the

termination petition, Father demonstrated a settled purposed of

relinquishing his parental claim to the Children or failed to perform parental

duties. Trial Court Opinions, 5/15/15, at 2.4 Father was incarcerated

approximately twenty-three months of the Children’s life. Id. at 2.

Moreover, the trial court found that Father did not utilize all resources

available to him in order to maintain contact with the Children while he was

incarcerated. Id. at 8. The trial court found:

Father had no contact with [the Children] during both the period
of time he was incarcerated nor did he attempt to contact [the
Children] since his release from custody. Father’s failure to take
steps to establish a parental relationship with [the Children] or
corresponding in any fashion with [the Children] served to
demonstrate his settled purpose of relinquishing his parental
rights. Father didn’t send any letters, cards [sic] nor did he
attempt to contact [the Children] directly [through] the foster
parent. During the entire time that [the Children were] in
placement Father made no attempt to contact [the Children] nor
did he make efforts to set up a visitation schedule with [the
Children] upon his release from prison.

Id. at 7.

At the hearing, Ms. Harper testified that Father did not contact her

from the time the Children came into care until the summer of 2014. N.T.,

2/10/15, at 19-36. Ms. Harper testified that Father contacted her over the

summer of 2014 and a “little bit” into the fall of 2014. Id. at 18-19. Ms.

____________________________________________

4
The trial court issued an opinion for each docket number, but all the
opinions are collectively the same.

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Harper testified that Father did not have any contact with her since he was

released from prison. Id. at 20. Ms. Harper testified Father did not try to

arrange visitation with the Children since his release from prison. Id. at 19-

20. Ms. Harper testified that Father was compliant with his goal of staying in

contact while in prison, but Father was not compliant with his objective of

contacting her once he was released from prison. Id. at 37. Moreover, Ms.

Allen testified that Father never visited the Children, and did not make any

outreach for visitation at DHS. Id. at 41. Ms. Allen testified that Father

inquired about the Children’s well-being three times since the Children have

been in care. Id. at 50-51.

Father testified that he did not have any phone contact with the

Children since they were placed into DHS’s care. Id. at 86. Father testified

that he did not ask DHS caseworkers about visitation with the Children. Id.

Father testified that he attempted to contact Ms. Harper a week before the

termination hearing. Id. at 81-82. Furthermore, Mother testified that

Father ceased to have any personal interaction with the Children once he

was incarcerated. Id. at 67.

The record reveals that the trial court took into consideration Father’s

alleged desire to contact the Children and his period of incarceration. The

trial court found that Father’s failure to perform his parental duties was not

due solely to his incarceration since “Father had no contact with [the

Children] during both the period of time he was incarcerated nor did he

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attempt to contact [the Children] since his release from custody.” Trial

Court Opinions, 5/5/15, at 7.

The trial court found Father’s testimony not credible. Id. at 3. His

argument regarding section 2511(a)(1) essentially seeks for this Court to

make credibility and weight determinations different from those of the trial

court. We stated in In re Z.P., a child’s life “simply cannot be put on hold in

the hope that [a parent] will summon the ability to handle the

responsibilities of parenting.” In re Z.P., 994 A.2d at 1125. Rather, “a

parent’s basic constitutional right to the custody and rearing of his 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 his or her potential in a

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

Consequently, Father’s issue on appeal lacks merit, and we find no abuse of

discretion in the trial court’s evaluation of section 2511(a)(1) with respect to

Father.

With respect to 2511(a)(2), the trial court found that Father evidenced

both an incapacity and refusal to parent because of “Father’s failure to

establish and maintain a relationship with [the Children] when [the Children

were] in foster care.” Trial Court Opinions, 5/5/15, at 9. Moreover, the trial

court rejected Father’s argument that he maintained contact with Ms. Harper

and that his compliance with DHS’s objective relieves him of the duty to

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establish and maintain a parental relationship with the Children. Id. at 12.

The trial court found:

Compliance with an objective established by an agency does not
equate to a parent’s responsibly and duty to maintain a place of
importance in a [c]hild’s life. While incarcerated, Father had a
positive duty to foster a healthy relationship with [the Children].
Additionally, once Father was released from prison he made no
effort to contact DHS, the agency or the foster parents to
arrange for visitation with [the Children]. In any event
termination of parental rights are not precluded based upon a
determination of whether a parent was in compliance with an
objective established by an agency.

Id.

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 the

Interest of: D.C.D., a Minor, 105 A.3d 662, 673-674, 676 (Pa. 2014)

(rejecting the suggestion that an agency must provide reasonable efforts to

enable a parent to reunify with a child prior to the termination of parental

rights, and rejecting the suggestion that section 2511 of the Adoption Act

should be read in conjunction with section 6351 of the Juvenile Act,

particularly 42 Pa.C.S. § 6351(f)((9)(iii)). Therefore, Father’s issue on

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appeal lacks merit, and we find no abuse of discretion in the trial court’s

evaluation of Section 2511(a)(2).5

The trial court must also consider how terminating Father’s parental

rights would affect the needs and welfare of the Children pursuant to 23

Pa.C.S.A. § 2511(b). Pursuant to section 2511(b), the trial court’s inquiry is

specifically directed to a consideration of whether termination of parental

rights would best serve the developmental, physical and emotional needs of

the child. See In re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super. 2005),

appeal denied, 587 Pa. 705, 897 A.2d 1183 (2006). “Intangibles such as

love, comfort, security, and stability are involved in the inquiry into the

needs and welfare of the child.” Id. at 1287 (citation omitted). We have

instructed that the court must also discern the nature and status of the

parent-child bond, with utmost attention to the effect on the child of

permanently severing that bond. See id.

The trial court found that terminating Father’s parental rights would be

in the best interest of the Children. Trial Court Opinions, 5/5/15, at 12. The

trial court found that the Children are “in a nurturing and loving pre-adoptive

foster home.” Id. The trial court found, since the Children have been in

____________________________________________

5
As the removal of the Children was not from Father, we will not discuss
section 2511(a)(5) and (8) of the Adoption Act. In re Z.P., 994 A.2d at
1123, n. 2.

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DHS’s care for twenty-three months, “there was no evidence that [Father]

has ever cared for [the Children].” Id.

Ms. Harper and Ms. Allen testified that termination of Father’s parental

rights would be in the best interest of the Children. N.T., 2/10/15, 23, 39.

Ms. Allen testified that Father never sent any gifts to the Children on their

birthdays. Id. at 42. Moreover, Ms. Allen and Ms. Harper testified that the

Children have not brought up nor talked about Father. Id. at 22, 43, 49.

Ms. Harper and Ms. Allen testified that the Children’s needs are being

met, and that the Children are safe and doing well in their foster homes.

Id. at 23-26, 38-39. Ms. Harper testified that K.R.M. and K.F.-W.M. are in a

foster home through Delta Children services and doing well. Id. at 24-25.

Ms. Allen testified that K.J.C.M is well-adjusted in his pre-adoptive foster

home and calls his foster mother “Mommy.” Id. at 26, 39. Ms. Harper

testified that K.S.M. is doing well in his pre-adoptive home with Maternal

Aunt and Maternal Uncle. Id. at 23. Malik Charles testified that K.S.M.

is in a safe home and that all of his needs are being met by his foster

parents. Id. at 54-55.

On the issue of bonding, our review of the record reveals no evidence

of a bond between Father and the Children. The trial court found that there

was no evidence that Father had any kind of relationship with the Children.

Trial Court Opinions, 5/5/15, at 11-12. We have stated, “In cases where

there is no evidence of any bond between the parent and child, it is

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reasonable to infer that no bond exists.” In re K.Z.S., 946 A.2d 753, 763

(Pa. Super. 2008).

After this Court’s careful review of the record, we conclude that the

competent evidence in the record supports the trial court’s determination

that there was no bond between Father and the Children and that the

termination of Father’s parental rights would best serve the needs and

welfare of the Children. Thus, we will not disturb the trial court’s

determinations. See In re M.G., 855 A.2d at 73-74. Therefore, we affirm

the decrees terminating Father’s parental rights to the Children on the basis

of section 2511(a)(1), (2), and (b), and changing their permanency goals to

adoptions.

Decrees affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/11/2015

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