J-S74016-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.J.P., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: D.B., FATHER
No. 964 EDA 2016
Appeal from the Order Entered March 3, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0001876-2014
CP-51-AP-0000145-2016
BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY OTT, J.: FILED DECEMBER 22, 2016
D.B. (“Father”) appeals from the March 3, 2016 decree involuntarily
terminating his parental rights to his son, A.J.P., born in May of 2006.1 We
affirm.2
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
By separate decree entered on March 3, 2016, the trial court involuntarily
terminated the parental rights of A.P. (“Mother”). Mother filed an appeal
from the decree, which is docketed at 1089 EDA 2016. This Court disposed
of Mother’s appeal by separate memorandum.
2
The trial court also issued a goal change order dated March 3, 2016, and
Father timely filed a notice of appeal. We conclude that Father’s appeal from
the goal change order is waived because he has not raised any claim
regarding it in his brief. See Krebs v. United Refining Co. of Pa., 893
A.2d 776, 797 (Pa. Super. 2006) (“We will not ordinarily consider any issue
(Footnote Continued Next Page)
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We summarize the factual and procedural history as follows. On
August 6, 2014, A.J.P. was removed from Mother’s custody and placed with
his maternal aunt as a result of allegations against Mother of child abuse and
illegal marijuana use. Trial Court Opinion, 6/8/16, at 2-3. The trial court
adjudicated A.J.P. dependent on August 20, 2014. Id. at 3.
Father has been incarcerated throughout the history of this case. On
September 30, 2015, he entered a guilty plea on charges of murder in the
third degree and aggravated assault. Id. at 7. Father was sentenced to a
term of incarceration of 22 ½ to 45 years imprisonment. Id. By the time of
the subject proceedings, Father was incarcerated at the State Correctional
Institution - Smithfield, where he was housed in a restricted unit and not
permitted any contact with visitors. Id. at 8.
During A.J.P.’s dependency, Father was assigned a single case plan
requiring him to remain in communication with the child. N.T., 3/3/16, at
22. On February 16, 2016, the Philadelphia County Department of Human
Services (“DHS”) filed a petition for the involuntary termination of Father’s
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b). On
March 3, 2016, the trial court held a hearing during which DHS presented
the testimony of Yoanny Santos and Deitra Price, case managers at the
_______________________
(Footnote Continued)
if it has not been set forth in or suggested by an appellate brief’s statement
of questions involved. . . .”) (citations omitted).
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Community Umbrella Association (“CUA”) - Northeast Treatment Center
(“NET”). In addition, Father testified on his own behalf.
By decree dated and entered on March 3, 2016, the trial court
involuntarily terminated Father’s parental rights. Father timely filed a notice
of appeal and a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b).
On appeal, Father presents three 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)?
3. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Father] under 23 Pa.C.S.A. § 2511(b)?
Father’s brief at 5.
Our standard of review is as follows:
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 quotation marks
omitted).
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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).
We need only agree with the trial court as to any one subsection of
Section 2511(a), as well as Section 2511(b), in order to affirm. See In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we
conclude that the certified record supports the decree pursuant to Section
2511(a)(2) and (b), 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:
...
(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
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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
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(a)(2), (b).
With respect to Section 2511(a)(2), this Court has stated:
[T]he 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.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). Further, we have explained that, “[t]he 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 A.L.D., 797
A.2d 326, 337 (Pa. Super. 2002) (citations omitted).
With respect to Section 2511(b), this Court has stated that,
“[i]ntangibles such as love, comfort, security, and stability are involved in
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the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d
1284, 1287 (Pa. Super. 2005) (citation omitted). Further, the trial 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.” Id. (citation omitted). However, “[i]n cases where there is no
evidence of any bond between the parent and child, it is reasonable to infer
that no bond exists. The extent of any bond analysis, therefore, necessarily
depends on the circumstances of the particular case.” In re K.Z.S., 946
A.2d 753, 762-763 (Pa. Super. 2008) (citation omitted).
Instantly, Father acknowledges, “he will be in prison during the child’s
minor years.” Father’s brief at 17. Nevertheless, he relies on this Court’s
decision in In the Interest of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000)
(en banc), wherein we affirmed the order terminating the incarcerated
father’s parental rights under Section 2511(a)(1). Specifically, Father
argues that the trial court erred in terminating his parental rights pursuant
to Section 2511(a)(2) because “[i]ncarceration alone is not sufficient to
support termination under any subsection.” Father’s brief at 17. Although
Father acknowledges that, “an incarcerated parent’s responsibilities are not
tolled during incarceration,” he asserts that he never received the single
case plan established by DHS in this matter. Id. As such, Father argues he
“could not begin the process of availing himself [of] services in prison and
perform[ing] his parental duties.” Id. Father’s issue is without merit.
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In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme
Court held that this Court erred in reversing the trial court’s order
involuntarily terminating the incarcerated father’s parental rights pursuant to
Section 2511(a)(2). Specifically, our Supreme Court explained that we
misinterpreted In re Adoption of McCray, 331 A.2d 652 (Pa. 1975), which
considered the termination of parental rights of incarcerated parents
involving abandonment, now codified at Section 2511(a)(1), as providing
that incarceration alone cannot be grounds for termination under any
provision of Section 2511(a). S.P., 47 A.3d at 828. Further, the S.P. Court
stated that we misapplied McCray by “conflating the statutory criteria for
termination in a § 2511(a)(1) abandonment case with the standard
applicable in a § 2511(a)(2) incapacity case.” Id. at 828. Importantly, the
S.P. Court stated:
[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
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).
Id. at 830.
Based on the holding in In re Adoption of S.P., supra, we conclude
that In the Interest of C.S., supra, which Father relies on, is inapposite in
this matter. In In the Interest of C.S., we considered incarceration under
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Section 2511(a)(1). We will not “conflate” the statutory criteria for
termination in this case, which we have reviewed under the standard
applicable in a Section 2511(a)(2) incapacity case.3
We discern no abuse of discretion by the trial court in terminating
Father’s parental rights pursuant to Section 2511(a)(2) due to his “ongoing
inability to provide care or control for the [c]hild or perform any parental
duties because he is incarcerated, sentenced to 22.5 to 45 years in prison.”
Trial Court Opinion, 6/8/16, at 15. As such, Father’s argument with respect
to Section 2511(a)(2) fails.
In addition, we reject Father’s bald assertion that DHS did not provide
clear and convincing evidence regarding Section 2511(b). This Court has
explained as follows:
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The
mere existence of an emotional bond does not preclude the
termination of parental rights. See 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 orphans’ court must examine the status of
the bond to determine whether its termination “would destroy an
existing, necessary and beneficial relationship.” In re Adoption
of T.B.B., 835 A.2d 387, 397 (Pa. Super. 2003). As we
explained in In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010),
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3
Based on this disposition, we need not review Father’s issue with respect to
Section 2511(a)(1).
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[I]n addition to a bond examination, 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. Additionally, this Court stated that the
trial court should consider the importance of continuity of
relationships and whether any existing parent-child bond
can be severed without detrimental effects on the child.
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
Instantly, Yoanny Santos, the CUA case manager, testified that
although A.J.P. has a relationship with Father, it is not a strong relationship.
N.T., 3/3/16, at 24. She testified that A.J.P. has never lived with Father,
and that “they’ve had very little communication. . . .” Id. Ms. Santos
testified that A.J.P. would not be irreparably harmed if Father’s parental
rights are terminated. Id. Because there is no record evidence of a parent-
child bond between A.J.P. and Father, it was reasonable for the court to infer
that no such bond exists. See In re K.Z.S., supra. Therefore, we discern
no abuse of discretion by the trial court in terminating Father’s rights
pursuant to Section 2511(b). Accordingly, we affirm the decree pursuant to
Section 2511(a)(2) and (b).
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2016
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In the Interest of: A.J.P., a Minor
Combined Opinion