In the Int. of: S.K., Appeal of: A.K.

J. S37043/19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.K., A MINOR : IN THE SUPERIOR COURT OF
PENNSYLVANIA

APPEAL OF: A.K., FATHER No. 501 EDA 2019

Appeal from the Order Dated January 7, 2019,
in the Court of Common Pleas of Philadelphia County
Domestic Relations Division at No. CP-51-DP-0002866-2017

IN THE INTEREST OF: S.G.R.K., IN THE SUPERIOR COURT OF
A MINOR PENNSYLVANIA

APPEAL OF: A.K., FATHER No. 503 EDA 2019

Appeal from the Decree Entered January 7, 2019,
in the Court of Common Pleas of Philadelphia County
Domestic Relations Division at No. CP-51-AP-0000724-2018

BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 12, 2019

A.K. ("Father") appeals from the January 7, 2019 decree entered in the

Court of Common Pleas of Philadelphia County, Domestic Relations Division,

involuntarily terminating his parental rights to his dependent child, S.K., male

child, born in October of 2017 ("Child"), pursuant to the Adoption Act,
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23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8) and (b).1 After careful review, we

affirm.

The trial court set forth the following:

On October 24, 2017, the Child became known to the
Department of Human Services ("DHS") when DHS
received a General Protective Services ("GPS") report,
which alleged that Child's mother ("Mother")[2] tested
positive for marijuana and phencyclidine ("PCP") at
Child's birth. On October 27, 2017, DHS obtained an
Order for Protective Custody ("OPC") for Child and
placed Child with his maternal aunt where he currently
remains. On November 8, 2017, following a hearing,
Child was adjudicated dependent. On August 22,
2018, a DNA paternity test report was issued by the
DNA Diagnostic Center per Court's Order, which
indicated paternity as to Father. Father was
incarcerated when Child was born. Father was not
incarcerated at the time of the hearing. Father has a
long criminal history. In February of 2001, Father was
adjudicated delinquent on felony sexual assault
charges. O[n] March 5, 2008, Father was adjudicated
delinquent on drug possession charges. On March 5,

1 The record reflects that Father filed a timely notice of appeal of the decree
terminating his parental rights to Child at No. CP-51-AP-0000724-2018, which
this court docketed at No. 503 EDA 2019. Father also filed a timely notice of
appeal of the order changing the goal to adoption at No. CP-51-DP-0002866-
2017, which this court docketed at No. 501 EDA 2019. By order entered
February 25, 2019, this court consolidated the appeals sua sponte pursuant
to Pa.R.A.P. 513. (Per curiam order, 2/25/19.) In his brief to this court,
however, Father does not challenge the goal -change order.

We also note that the trial court appointed a guardian ad /item to represent
Child's best interest. On the date of the termination hearing, Child was
14 months old. Therefore, separate legal representation was not required
because Child was too young to express a preferred outcome and there could
be no conflict between Child's best and legal interests. See In re D.L.B., 166
A.3d 322 (Pa.Super. 2017); In re T.S., 192 A3d 1080 (Pa. 2018).

2The record reflects that the trial court also involuntarily terminated Mother's
parental rights to Child by decree entered on January 7, 2019.

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2008, Father was found guilty of Driving Under the
Influence ("DUI"). On September 23, 2010, Father
was convicted of felony drug charges and was
sentenced to a maximum of 23 months' incarceration.
On November 1, 2010, Father was found guilty of drug
possession. On January 13, 2011, Father pled guilty
to the felony drug charges and was sentenced to a
maximum period of incarceration of 3 years. On
March 25, 2015, Father pled guilty to a drug felony
and was sentenced to a maximum of 23 months'
incarceration. The underlying Petition to Terminate
Father's Parental Rights was filed due to Child being
in DHS custody for a period in excess of six months.
Father had never lived with the Child nor provided the
Child any financial support. He was unable to provide
parental care for the Child nor remedy the causes that
had brought the Child into DHS care. Father lacked
stable housing and was in need of mental health
treatment.

On January 7, 2019, following a hearing, the trial
court ruled to terminate Father's parental rights
pursuant to 23 Pa. C.S.A. § 2511 (a)(1)(2)(5) and (8)
and found that termination of the Father's parental
rights was in the best interest of the Child pursuant to
23 Pa.C.S.A. § 2511(b). Father filed the instant Notice
of Appeal on February 5, 2019.

Trial court opinion, 4/5/19 at 2-4 (record citations omitted).

The record reflects that on February 6, 2019, while Father was still

represented by court -appointed counsel Claire Leotta, Esq., Father filed

separate pro se notices of appeal of the decree terminating his parental rights

and of the goal -change order. After receiving confirmation from the trial court

that Father was represented by counsel, this court entered an order on

February 25, 2019, directing Attorney Leotta to file concise statements of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i), as well

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as completed docketing statements, on Father's behalf no later than March 7,

2019. Attorney Leotta timely complied.

Father raises the following issues for our review:

1. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
Father, A.K., pursuant to 23 Pa. C.S.A.
[§] 2511(a)(1) where Father presented
evidence that he made significant efforts to
perform his parental duties[?]

2. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
Father, A.K., pursuant to 23 Pa. C.S.A.
[§] 2511(a)(2) where Father presented
evidence that he made significant efforts to
remedy any incapacity or neglect[?]

3. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
Father, A.K., pursuant to 23 Pa. C.S.A.
[§§] 2511(a)(5) and (a)(8) where the evidence
clearly showed that [C]hild was removed from
Mother's care at birth and [F]ather was not
known at that time and was incarcerated[?]

4. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
Father, A.K., pursuant to 23 Pa. C.S.A.
[§] 2511(b) where evidence was presented that
Father has a positive parental bond with [C]hild
that would be detrimental to sever[?]

Father's brief at 8.

In matters involving involuntary termination of parental rights, 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

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trial court if they are supported by the record." In re
Adoption of S.P. , 47 A.3d 817, 826 (Pa. 2012). "If
the factual findings are supported, appellate courts
review to determine if the trial court made an error of
law or abused its discretion." Id. "[A] decision may
be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill -will." Id. The trial
court's decision, however, should not be reversed
merely because the record would support a different
result. Id. at 827. We have previously emphasized
our deference to trial courts that often have first-hand
observations of the parties spanning multiple
hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
2010)].

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). "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) (citation omitted). "[I]f 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) (citation omitted).

The termination of parental rights is guided by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis

of the grounds for termination followed by the needs and welfare of the child.

Our case law has made clear that under Section 2511,
the court must engage in a bifurcated process prior to
terminating parental rights. 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

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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 have

defined clear and convincing evidence as that which 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 C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting

Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).

In this case, the trial court terminated Father's parental rights pursuant

to Sections 2511(a)(1), (2), (5), and (8), as well as (b). We have long held

that, in order to affirm a termination of parental rights, we need only agree

with the trial court as to any one subsection of Section 2511(a), as well as

Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)

(en banc). Here, we analyze the court's termination decree pursuant to

Subsections 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:

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(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 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.A. § 2511(a)(2), (b).

We first address whether the trial court abused its discretion by

terminating Father's parental rights pursuant to Section 2511(a)(2).

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.

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In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation

omitted). "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),

quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002). "Parents are

required to make diligent efforts toward the reasonably prompt assumption of

full parental responsibilities. . . . [A] parent's vow to cooperate, after a long

period of uncooperativeness regarding the necessity or availability of services,

may properly be rejected as untimely or disingenuous." In re A.L.D., 797

A.2d at 340 (internal quotation marks and citations omitted).

Here, in terminating Father's parental rights, the trial court expounded

that

[t]he record demonstrated Father's ongoing inability
to provide care for or control of Child due to his failure
to remedy the conditions that brought the Child into
care. These conditions included the inability of Father
to provide stable housing and to address his own
mental health needs. At the Termination Hearing,
Mr. Khaleef Wilson, the Community Umbrella Agency
("CUA") representative, testified that the Single Case
Plan ("SCP") Objectives for Father were established
after he was released from prison and his paternity
was established. The Father's SCP objectives were to
participate in (1) housing counseling, (2) parenting
classes, and (3) random drug testing and (4) to visit
the Child. The CUA representative testified that
Father had been unable to find appropriate housing or
employment. Father also failed to communicate or
demonstrate his source of income, if any. Father did
not enroll in mental health treatment until October

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2018. The CUA Representative testified that Father
provided no financial assistance to the Child. During
visitation, Father was unable to change Child's
diaper.[3] The CUA Representative also testified that
there existed concerns that Father would continue to
spend time with the Child's Mother, who had been
deemed a safety risk to the Child.

At the hearing, Father testified that he had numerous
felony convictions and admitted to hav[ing] been a
drug dealer in his past. Father testified that he lived
in a rooming house and that he rented a single room.
Father testified that he lived in the rooming house
with four other people who were strangers and
unrelated to him. Father testified that he received
public assistance and that he received money from
family members living in Puerto Rico.

Father testified that his mental health interfered with
his ability to work and that he had applied for disability
payments. Father testified that he had bi-polar,
depression and ADHD. Despite this mental health
history, Father did not enroll in mental health
treatment until October 2018. Father admitted that
he was presently missing mental health treatment
appointments.

Trial court opinion, 4/5/19 at 4-6.

In his brief to this court, Father contends that the trial court weighed

his past criminal history too heavily and that "there was no evidence of any

present incapacity." (Father's brief at 19-20.) The record belies Father's

3 We note that the CUA representative testified that although Father "can use
some help with [] parenting," the representative had "not noticeably seen
[Father] actually change [C]hild" and, as a result, he "is not aware" if Father
is able to change Child's diaper. (Notes of testimony, 1/7/19 at 38.)
Therefore, the trial court's factual finding that Father is "unable to change
Child's diaper" is not supported by the record, and we reject the finding.

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claim. Notwithstanding the fact that Father's criminal history is relevant to

the termination decision, the record supports the trial court's factual findings

that Father lacks appropriate housing; that Father does not work; that Father

does not provide any financial assistance to Child; and that Father has not

been consistent in attending his mental -health treatment.

We have reviewed the record carefully and conclude that DHS presented

clear and convincing evidence that Father's conduct satisfies the statutory

grounds for terminating Father's parental rights under Section 2511(a)(2).

The record demonstrates that the repeated and continued incapacity of Father

has caused Child to be without essential parental care, control, or subsistence

necessary for his physical or mental well-being and the conditions and causes

of Father's incapacity cannot or will not be remedied by Father. We discern

no abuse of discretion.

We now turn to whether termination was proper under Section 2511(b).

As to that section, our supreme court has stated as follows:

[I]fthe 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.,

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53 A.3d at 791. However, as discussed below,
evaluation of a child's bonds is not always an easy
task.

In re T.S.M., 71 A.3d at 267. "In 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).

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 at 1121 (internal citations omitted).

Moreover,

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.

[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. . . .

In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M., 33 A.3d

95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).

Our supreme court has stated that, "[c]ommon sense dictates that

courts considering termination must also consider whether the children are in
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a pre -adoptive home and whether they have a bond with their foster parents."

In re T.S.M., 71 A.3d at 268. The court directed that, in weighing the bond

considerations pursuant to Section 2511(b), "courts must keep the ticking

clock of childhood ever in mind." Id. at 269. The T.S.M. court observed,

"[c]hildren are young for a scant number of years, and we have an obligation

to see to their healthy development quickly. When courts fail . . . the result,

all too often, is catastrophically maladjusted children." Id.
The record reflects that Child, who was 14 months old at the time of the

termination hearing, has never lived with Father. Child lives with his foster

parents who want to adopt him. (Notes of testimony, 1/7/19 at 57-58.) Child

calls his foster mother "mom -mom." (Id. at 60.) The caseworker testified
that when Child wants something, he looks to his foster mother to fulfill his

needs. (Id. at 47.) Additionally, the caseworker opined that Child has no

bond with Father and that termination would not result in irreparable harm to

Child. (Id. at 44-45.)
In terminating Father's parental rights under Section 2511(b), the trial

court commended Father for being candid about his criminal history and his

potential for re -incarceration, but stressed that Father's "criminal history is of

grave concern" "with regard to the safety of [C]hild." (Id. at 85.) The trial

court further emphasized that all parental duties are being performed by

Child's foster parents and that it is in Child's best interest to remain with the

foster family. (Id. at 85-86.) The trial court also found that termination would

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have no detrimental effect on Child. Consequently, the trial court terminated

Father's parental rights under Section 2511(b) because termination was in the

Child's best interest. (Trial court opinion, 4/5/19 at 7-8.)

Based upon our thorough review of the record, we find no abuse of

discretion and conclude that the trial court appropriately terminated Father's

parental rights under Sections 2511(a)(2) and (b).

Order affirmed. Decree affirmed.

Judgment Entered.

Joseph D. Seletyn,
Prothonotary

Date: 8/12/19

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