J-S25045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: S.A.S., JR.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

APPEAL OF: S.S., SR., NATURAL FATHER

No. 38 WDA 2015

Appeal from the Order December 10, 2014 in the Court of Common Pleas of Lawrence County Orphans' Court at No.: 20004 of 2014

BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J. * MEMORANDUM BY PLATT, J.: FILED JUNE 02, 2015 S.S., Sr. (Father) appeals the order of the Court o f Common Pleas of Lawrence County, entered on December 10, 2014, that terminated his parental rights to his son, S.A.S., Jr. (Child), bo rn in October of 2011. We

affirm. 1 Lawrence County Children and Youth Services (CYS) f irst became

involved with Child when Father and Mother took him to a hospital on July 24, 2012, “and claimed worms were coming out of [hi s] skin.” (N.T. Involuntary Termination, 5/08/14, at 18). The hosp ital referred Child to CYS, which took legal and physical custody of Child on July 25, 2012. The

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* Retired Senior Judge assigned to the Superior Cour t.

1 N.R. (Mother) consented to the termination of her parental rights to Child.J-S25045-15

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trial court adjudicated Child dependent and placed him in the custody and control of CYS on August 9, 2012. CYS placed Child in kinship care with the consent of his parents. Child has resided in the s ame kinship home throughout his placement and has had no contact wit h Father since October 17, 2012. CYS created a Child Permanency Plan (CPP) for Fathe r that Father signed on September 19, 2012. The CPP goals establ ished for Father were: (1) complete a parenting course through Children’s Advocacy Center; (2) obtain a drug and alcohol assessment and follow any and all recommendations; (3) obtain and maintain a safe, st able home environment for himself and Child; (4) visit Child regularly; a nd (5) sign necessary

releases for CYS. Father reviewed the plan with CYS caseworker, Gary Zarilla, and informed him that he would soon go to jail, and tha t he would not be able to complete the goals of the plan prior to his incarce ration. Father was incarcerated in November 2012 and, in Ja nuary of 2013,

was sentenced to a term of incarceration of not les s than three to not more than six years related to his operation of a metham phetamine lab in the home. Father’s anticipated release date is Novembe r of 2015. CYS revised Father’s CPP goals after his incarceration. Father ’s new goals were: (1) address his drug and alcohol use; (2) learn parenti ng skills; (3) demonstrate financial and personal stability; (4) learn to plan long-term; and (5)J-S25045-15

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demonstrate mental and emotional stability. Father was not able to begin work on his goals while at SCI Camp Hill but had to wait until he arrived at his “home” prison of SCI-Mercer. Father owns a house in New Castle, Pennsylvania, wh ere he will reside upon his release from prison, and he expects to hav e a job upon his release. CYS filed its petition to terminate Father’s parent al rights on January 22, 2014, pursuant to 23 Pa.C.S.A. §§ 2511(a)(1),(2 ), (8), and (b). The trial court entered its decree terminating Father’s parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (8), and (b) on De cember 10, 2014. Father timely appealed on January 2, 2015, and file d his statement of errors complained of on appeal on January 6, 2015. 2 Father raises the following questions on appeal: [1] Whether the [trial] court erred in finding that [CYS] proved by clear and convincing evidence that sufficient gr ounds existed to terminate the parental rights of [] Father[?] [2] Whether the [trial] court erred in not finding that [CYS] failed to provide [] Father with reasonable efforts to promote reunification with [Child?] [3] Whether the [trial] court erred in finding that [CYS] provided [sic] by clear and convincing evidence tha t it is in the best interest of [Child] that the rights of [] Fath er be terminated[?]

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2 Because there was no objection or claim of prejudi ce from Appellee, we have accepted the late filing in reliance on our de cision in In re K.T.E.L. , 983 A.2d 745 (Pa. Super. 2009).J-S25045-15

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(Father’s Brief, at 5).

Our standard of review is as follows: . . . In an appeal from an order terminating parent al rights, our scope of review is comprehensive: we co nsider all the evidence presented as well as the trial court’s fac tual findings and legal conclusions. However, our standard of re view is narrow: we will reverse the trial court’s order onl y if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge’s decision is entitled to the same deference as a jury verdict.

In re L.M. , 923 A.2d 505, 511 (Pa. Super. 2007) (citations om itted). Further, we have stated:

Where the hearing court’s findings are supported by competent evidence of record, we must affirm the he aring court even though the record could support an opposite re sult.

We are bound by the findings of the trial court which have adequate support in the record so long as the findings do not evidence capricious disregar d for competent and credible evidence. The trial cou rt is free to believe all, part, or none of the eviden ce presented, and is likewise free to make all credibi lity determinations and resolve conflicts in the evidenc e. Though we are not bound by the trial court’s inferences and deductions, we may reject its conclusions only if they involve errors of law or a re clearly unreasonable in light of the trial court’s sustainable findings.

In re M.G. , 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations o mitted). In order to affirm the termination of parental righ ts, this Court need only agree with any one subsection of Section 2511( a). See In re B.L.W. , 843 A.2d 380, 384 (Pa. Super. 2004) ( en banc ), appeal denied , 863 A.2d 1141 (Pa. 2004).J-S25045-15

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Requests to have a natural parent’s parental rights terminated are governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part: § 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 o f at least six months immediately preceding the filin g of the petition either has evidenced a settled purp ose 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 wel fare of the child. The rights of a parent shall not be termina ted solely on the basis of environmental factors such as inadequa te housing, furnishings, income, clothing and medical care if f ound to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), th e court shall not consider any efforts by the parent to remedy the co nditions described therein which are first initiated subsequ ent to the giving of notice of the filing of the petition. 23 Pa.C.S.A. § 2511(a)(1), (b). It is well-settled that a party seeking termination of a parent’s rights bears the burden of proving the grounds to so do by “clear and convincing evidence,” a standard that requires evidence that i s “so clear, direct, weighty, and convincing as to enable the trier of f act to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.” In

re T.F. , 847 A.2d 738, 742 (Pa. Super. 2004) (citation omi tted). Further,J-S25045-15

- 6 - A parent must utilize all available resources to pr eserve the parental relationship, and must exercise reason able firmness in resisting obstacles placed in the path of mainta ining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to p erform one’s parental responsibilities while others provide the child with his or her physical and emotional needs.

In the Interest of K.Z.S. , 946 A.2d 753, 759 (Pa. Super. 2008) (citation omitted). To terminate parental rights pursuant to section 25 11(a)(1), the person or agency seeking termination must demonstra te “through clear and convincing evidence that: for a period of at least six months prior to the filing of the petition, the parent’s conduct demons trate[d] a[] settled purpose to relinquish parental rights or that the p arent has refused or failed to perform parental duties.” In re Adoption of M.E.P. , 825 A.2d 1266, 1272 (Pa. Super. 2003) (citing 23 Pa.C.S.A. § 2511( a)(1)). With respect to section 2511(a)(1), our Supreme Cou rt has held: Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parent al rights, the court must engage in three lines of inquiry: (1) th e parent’s explanation for his or her conduct; (2) the post-ab andonment contact between parent and child; and (3) considera tion of the effect of termination of parental rights on the chi ld pursuant to Section 2511(b). In re Adoption of Charles E.D.M., II , 708 A.2d 88, 92 (Pa. 1998) (citation omitted). Further,

. . . the trial court must consider the whole histo ry of a given case and not mechanically apply the six-month statu tory provision. The court must examine the individual c ircumstances of each case and consider all explanations offered by the parentJ-S25045-15

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facing termination of his or her parental rights, t o determine if the evidence, in light of the totality of the circu mstances, clearly warrants the involuntary termination. In re B., N.M. , 856 A.2d 847, 855 (Pa. Super. 2004), appeal denied , 872 A.2d 1200 (Pa. 2005) (citations omitted). The Adoption Act 3 provides that a trial court “shall give primary consideration to the developmental, physical and em otional needs and welfare of the child.” 23 Pa.C.S.A. § 2511(b). It does not make specific reference to an evaluation of the bond between pare nt and child, but our case law requires the evaluation of any such bond. See In re E.M. , 620 A.2d 481, 483 (Pa. 1993). However, this Court has held that the trial court is not required by statute or precedent to order a formal bonding evaluation performed by an expert. See In re K.K.R.-S ., 958 A.2d 529, 533 (Pa. Super. 2008). Concerning incarcerated persons, our Supreme Court has stated: . . . incarceration is a factor, and indeed can be a determinative factor, in a court’s conclusion that grounds for te rmination exist under § 2511(a)(2) where the repeated and continued incapacity of a parent due to incarceration has caused the chi ld to be without essential parental care, control or subsist ence and that the causes of the incapacity cannot or will not be remedied.

* * * . . . [W]e now definitively hold that incarceration , while not a litmus test for termination, can be determinative o f the question of whether a parent is incapable of providing “esse ntial parental

____________________________________________ 3 23 Pa.C.S.A. §§ 2101-2938.J-S25045-15

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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 paren t,” sufficient to provide grounds for termination pursuant to 23 P a.C.S. § 2511(a)(2). See e.g. Adoption of J.J. , 515 A.2d [883,] 891 [(Pa. 1986)] (“[A] parent who is incapable of perfo rming parental duties is just as parentally unfit as one who refuses to perform the duties.”); [In re] E.A.P. , 944 A.2d [79,] 85 [(Pa. Super. 2008)] (holding termination under § 2511(a)( 2) supported by mother’s repeated incarcerations and f ailure to be present for child, which caused child to be without essential care and subsistence for most of her life and which cann ot be remedied despite mother’s compliance with various p rison programs). If a court finds grounds for terminatio n under subsection (a)(2), a court must determine whether t ermination is in the best interests of the child, considering the developmental, physical, and emotional needs and we lfare of the child pursuant to § 2511(b). In this regard, trial courts must carefully review the individual circumstances for e very child to determine, inter alia , how a parent’s incarceration will factor into an assessment of the child’s best interest. In re Adoption of S.P. , 47 A.3d 817, 828, 830-31 (Pa. 2012). 4 In response to Father’s first issue, whether CYS p resented sufficient evidence to terminate his parental rights pursuant to subsection (a), we quote the trial court with approval where it stated :

Gary Zarilla, the [CYS] caseworker assigned to [Chi ld’s] case, testified with respect to Father’s compliance with the [CPP]. Father wrote to CYS upon placement in his a ssigned penitentiary. Father informed CYS that he had sign ed up for a parenting class, but was placed on a waiting list f or the class. To

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4 The Supreme Court cited its decision in In re: Adoption of McCray , 331 A.2d 652, 655 (Pa. 1975), for the proposition that termination may be appropriate for an incarcerated parent who has fail ed to perform his parental duties for a six-month period of time. See In re Adoption of S.P. , supra at 828.J-S25045-15

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date, Father has not completed a parenting class. Father did not complete a drug and alcohol assessment, and he has not maintained suitable housing for [Child]. Father’s last visit with [Child] was on October 17, 2012, one month prior to his incarceration. During the three visits Father had with [Child] prior to [his] incarceration, [he] failed to behave appropriately. Furthermore, Father failed to provide CYS with rele ases for his service providers. On May 1, 2013, Father was provided with a modified [CPP]. The second plan was designed to accommodate Father’s ability to reach the goals during [his] incarcerati on. Under the second [CPP], Father had to inquire as to the avail ability of drug and alcohol services at his current facility; take all necessary steps to register for any drug and alcohol classes that may be available; learn parenting skills; demonstrate fina ncial and personal stability; develop long-term planning goal s and display mental and emotional stability. Father did complete a drug and alcohol assessment a t the Mercer State Correctional Institution, but document ation of Father’s compliance indicates that Father completed the assessment following the filing of the Petition for Involuntary Termination. Similarly, Father signed up for paren ting classes while incarcerated, but Father was put on a wait li st for this program. Father did not establish any programs [si c] towards achieving any of the remaining goals under the seco nd [CPP]. (Trial Court Opinion, 12/10/14, at 8-9).

The record demonstrates that Father’s incarceration was not a factor in his refusal or inability to parent Child. Therefor e, Father’s first claim is

without merit. We also find the trial court’s reasoning persuasive in its response to

Father’s second claim that CYS did not make reasona ble efforts to reunite

him with Child: . . . [The trial c]ourt has not made any finding th at CYS has failed to provide Father with reasonable efforts to promoteJ-S25045-15

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reunification with [Child]. In fact, the record cl early supports the alternative. In this case, CYS initially establishe d a [CPP] with Father. Father displayed poor parenting skills and no compliance with any of the established goals. When Father bec ame incarcerated and his circumstances changed, CYS est ablished a second [CPP] that reevaluated Father’s goals based upon his new situation. Again Father failed to establish an y significant compliance with the second [CPP]. ( Id. at 12). Our Supreme Court recently rejected the argument th at the provision of reasonable efforts by the county children’s serv ices agency is a factor in termination of the parental rights of a parent to a child. See In re D.C.D. 105 A.3d 662, 673-74, 676 (Pa. 2014) (rejecting sug gestion that an agency must provide reasonable efforts to enable parent to reunify with child prior to termination of parental rights). Thus, based on our Supreme Court’s holding in In re D.C.D. , we find no merit to Father’s second argument. Furthermore, the record establishes that terminati on is in the best interest of the Child. Child has been in placement with his half-siblings since he was nine months old. At the time of the hearing in this matter, he was three years of age. Child has had no contact with Father since October 17, 2012, more than two years prior to the termination hearing. Our

examination of the record reveals that there is suf ficient evidence to permit

the trial court to conclude that there is no eviden ce of a bond between Father and Child. “[I]n cases where there is no ev idence of a bond between a parent and child, it is reasonable to infer that no bond exists.” In re Adoption of J.M. , 991 A.2d 321, 324 (Pa. Super. 2010) (citation omi tted).J-S25045-15

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Our review of the record reveals that the trial cou rt’s decision to terminate Father’s parental rights pursuant to 23 P a.C.S.A. §§ 2511(a)(1) and (b) is supported by clear and convincing eviden ce, and that there was

no abuse of the trial court’s discretion. See In re L.M. , supra at 511.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/2/2015