J

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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT O.P. 65.37
IN RE: C.C., A MINOR

APPEAL OF: J.C., FATHER : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1336 MDA 2023 Appeal from the Order Entered August 22, 2023 In the Court of Common Pleas of Tioga County Orphans' Court at No(s): 3 OC 2022
BEFORE: NICHOLS, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KING, J.: FILED: MARCH 25, 2024
Appellant, J.C. (“Father”), appeals from the order entered in the Tioga
County Court of Common Pleas, granting the petition of Appellee, Tioga
County Department of Human Services (“DHS”) , for involuntary termination

of Father’s parental rights to his minor child , C.C (“Child”) . We affirm.
The relevant facts and procedural history of this appeal are as follows.

Father and child’s mother, T.T. (“Mother”) , never married

. Prior to C hild ’s

birth , Father was incarcerated for approximately eight years for burglary and

related offenses

. Child was born in September 2020. At th at time , Father
was on parole and living with Mother and her other children. C omplicating
matters, Father also faced an indicated report for sexual abuse of a minor

. ( See Findings of Fact and Conclusions of Law, filed 8/22/23, at 2). After his

birth , Child tested positive for methamphetamine s

. Father claimed that he

was unaware of Mother’s drug use , and Mother and Father took Child homeJ

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from the hospital . Shortly thereafter , DHS filed an application for emergency
protective custody. On April 28, 2021, the court granted legal and physical
custody to DHS

. ( Id. at 1).

Less than a month later , Father violated his parole and was

reincarcerated for using methamphetamine

. Father committed a misconduct

while incarcerated, and he was in eligible for parole until Ma y 2023. ( Id. at 2 ,
4 ). While incarcerated, Father received a service plan directing him to utilize

resources that were available in prison

. Specifically, the plan required Father

to complete parenting program s , a drug and alcohol program, and a
psychological evaluation

. DHS also required Father to meet with his

caseworker every two months

. The court conducted regular permanency review hearings after Father

received the service plan

. At each hearing, t he court determined that Father

was minimally compliant

. In the meantime, the court adjudicated Child
dependent i n July 2021. On August 2, 2021, DHS placed Child into kinship
care with a paternal aunt (“Aunt”) and her husband (“Uncle”), where Child has

remained ever since. ( Id. at 2). Significantly, Aunt and Uncle also adopted
Child’s biological siblings.
On January 4, 2022 , DHS filed a petition to terminate Father’s parental
rights

. The court conducted a termination hearing on April 12, 2023. On
August 22, 2023 , the court entered an order terminating Father’s parentalJ

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rights to Child

. 1 Father timely filed a notice of appeal and concise statement
of matters complained of on appeal on September 1 8 , 2023.

Father now raises five issues on appeal.
Did the trial court err in finding that [DHS] established by clear and convincing evidence proper grounds for involuntary termination pursuant to 23 Pa.C.S.A. § 2511(a)(1)?
Did the trial court err in finding that [DHS] established by clear and convincing evidence proper grounds for involuntary termination pursuant to 23 Pa.C.S.A. § 2511(a)(2)?
Did the trial court err in finding that [DHS] established by clear and convincing evidence proper grounds for involuntary termination pursuant to 23 Pa.C.S.A. § 2511(a)(5)?
Did the trial court err in finding that [DHS] established by clear and convincing evidence proper grounds for involuntary termination pursuant to 23 Pa.C.S.A. § 2511(a)(8) ?
Did the trial court err in failing to give primary consideration to the parent

- child bond between [Father] and the minor child pursuant to 23 Pa.C.S.A. § 2511(b) and thus, erroneously terminating [Father’s] parental rights?
(Father’s Brief at 4

- 5)

. Appellate review in termination of parental rights cases implicates the
following principles:

A parent ’ s right to make decisions concerning the care, custody, and control of his or her children is among the

_________________ __________ ______ ____ _______

1 Mother consented to the termination of her parental rights i n April 2022 , and she is not a party to the current appeal. ( See N.T. Termination Hearing, 4/12/23, at 1 ).J

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- oldest of fundamental rights. The time

- tested law of the Commonwealth requires that we balance this intrinsic parental interest within the context of a child ’ s essential needs for a parent ’ s care, protection, and support. We readily comprehend the significant gravity of a termination of parental rights, which has far

- reaching and intentionally irreversible consequences for the parents and the child. For these reasons, the burden of proof is upon the party seeking termination to establish by clear and con vincing evidence the existence of the statutory grounds for doing so. [C]lear 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. Because of this serious impact attending the termination of parental rights, it is important that a judicial decree extinguishing such rights be based solely on competent evidence.
In cases concerning the involuntary termination of parental rights, appellate review is limited to a determination of whether the decree of the termination court is supported by competent evidence. This standard of review corresponds to the standard employed in dependency cases, and requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but it does not require th e appellate court to accept the [trial] court ’ s inference s or conclusions of law. That is, if the factual findings are supported, we must determine whether the trial court made an error of law or abused its discretion. An abuse of discretion does not result merely because the reviewing court might have reached a different conclusion; we reverse for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill will. Thus , absent an abuse of discretion, an error of law, or insufficient evidentiary support for th e trial court ’ s decision, the decree must stand. We have previously emphasized our deference to trial courts that often have first

- hand observations of the parties spanning multiple hearings. However, [w]e must employ a broad, comprehensive review of the record in order to determine whether the trial court ’ s decision is supported by competent evidence.J

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In re Adoption of C.M. , ___ Pa. ___, ___, 255 A.3d 343, 358

- 59 (2021)
(internal citations and quotation marks omitted).
DHS filed a petition for the involuntary termination of Father’s parental
rights on the following grounds:

§ 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:

* * *

(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 incapacit y, 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). “Parental rights may be involuntarily
terminated where any one subsection of Section 2511(a) is satisfied, along
with consideration of the subsection 2511(b) provisions.” In re Z.P. , 994J

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A.2d 1108, 1117 (Pa.Super. 2010). 2

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 det ermines that the parent’s conduct warrants termination of [his] 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 o f the child.

In re L.M. , 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Father’s issues are related, and we address them together. Father

contends that DHS did not present clear and convincing evidence to support
the termination of his parental rights. Specifically, Father argues that DHS

“ failed to identify any current concerns regarding Father’s care of ” Child.
(Father’s Brief at 21) (emphasis in original)

. Father asserts that he was parole d in May 2023 , and he is now sober, employed, and in possession of
stable housing

. Based upon the foregoing, Father asserts that he has
remedied any causes of parental incapacity that led to Child’s removal.
Regarding Section 2511(b), Father insists that he presented evidence to

establish his bond with Child. Despite his incarceration , Father maintains that

a bond exists because Father sen t letters and gifts to C hild, interacted with
Child through video calls , and Child call s Father “daddy. ” ( Id. at 30). Father

_________________ __________ ______ ____ _______

2 DHS also sought the involuntary termination of Father’s parental rights under Section 2511(a)(1), (5) and (8), but we need only analyze Section 2511(a)(2) for purposes of this appeal.J

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also claims that DHS “ failed to present any testimony that the severing of that

bond would be in the best interest of the child

. ” ( Id. ) For these reasons , Father concludes that the court erred and abused its discretion by terminating
his parental rights. We disagree.
“The bases for termination of parental rights under Section 2511(a)(2),
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 perfo rm parental duties.” In re S.C.B. , 990
A.2d 762, 771 (Pa.Super. 2010). Under 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, neg lect 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 re Z.P., supra at 1117 (quoting In Interest of
Lilley , 719 A.2d 327, 330 (Pa.Super. 1998) )

. “[I] ncarceration is a factor, and indeed can be a determinative factor,

in a court ’ s conclusion that grounds for termination exist under [Section]
2511(a)(2) [

. ] ” In re Adoption of S.P. , 616 Pa. 309, 328

- 29, 47 A.3d 817,
828 (2012 ). “Each case of an incarcerated parent facing termination must be
analyzed on its own facts, keeping in mind ... that the child’s need for
consistent parental care and stability cannot be put aside or put on hold[.]”

Interest of K.M.W. , 238 A.3d 465, 474 (Pa.Super. 2020) ( en banc ) (quotingJ

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In re E.A.P. , 944 A.2d 79, 84 (Pa.Super. 2008)).

The focus is on whether the parent utilized resources available while in prison to maintain a relationship with his or her child. An incarcerated parent is expected to utilize all available resources to foster a continuing close relationship with his or her children.
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). “Importantly, a
parent’s ‘ recent efforts to straighten out [h is ] life’ upon release from
incarceration does not require that a court ‘indefinitely postpone adoption.’”
Interest of K.M.W., supra at 474 (quoting In re Z.P., supra at 1125).
Under Section 2511(b), the court must consider whether termination

will best serve the child’s needs and welfare. In re C.P. , 901 A.2d 516
(Pa.Super. 2006).

Intangibles such as love, comfort, security, and stability are involved when inquiring about the needs and welfare of the child. The court must also discern the nature and status of the parent

- child bond, paying close attention to the effect on the child of permanently severing the bond.

Id. at 520 (internal citations omitted). “In this context, the court must take
into account whether a bond exists between child and parent, and whether
termination would destroy an existing, necessary and beneficial relationship.”
In re Z.P., supra at 1121 (internal citations omitted).
Instantly, the court received testimony from Randy Brewer, the DHS
caseworker from April 2021 to November 2022. Mr. Brewer testified that
Father spent most of his adult life in prison

. Despite Father’s reincarcerationJ

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in May 2021 , Mr. Brewer recognize d that Father attempted to comply with the
service plan. Mr. Brewer indicated , however, that Father did not contact him
until January 2022. Moreover, Mr. Brewer explained that Father was
minimal ly compliant with the service plan. Although Mr. Brewer admitted he

did not observe Father’s video calls with Child , Mr. Brewer confirmed that

Father has not served a parental role since Child was six months old. ( See
N.T. Termination Hearing at 49)

.
Aunt provided testi mony about Child’s placement. Aunt adopted Child’s
siblings and is amenable to adopting Child. Child is “extremely close” with his
biological siblings. ( Id. at 96). Aunt also stated that she and Uncle have a
“typical parent relationship” with Child. ( Id. at 98). Child calls Aunt
“momma.” ( Id. ) Aunt also reiterated that Father did not perform parental

duties following his re incarcerat ion

. In addition , Father testified in his own defense

. Regarding Mr. Brewer’s
testimony that Father did not contact him until January 2022 , Father claimed
that the prison caused the delay by failing to add Mr. Brewer to Father’s call

list. Although Father completed a drug and alcohol program, he admitted that

he failed to complete parenting classes and a psychological evaluation

. 3

Father also testified that he started video calls with Child seven to eight

_________________ __________ ______ ____ _______

3 Father noted, however, that he wrote multiple letters to the teacher inquiring about enrollment in the parenting class. ( See N.T. Termination Hearing at 129).J

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months after his incarceration

. While Father described Child as being excited
to see him during the video calls , Father conceded that it wa s difficult to

maintain th eir relationship through video calls . ( Id. at 154). Father testified

that he sent his first letter to Child in July 2022 and first gift to Child in
September 2022. Moreover , Father acknowledged that he spen t a minimal

amount of time with Child since the opening of the case , and his prison

misconduct effectively prevented him from parent ing Child . ( Id. at 152).
The court considered the testimony and determined that DHS provided
clear and convincing evidence in support of termination.

[Father’s] role as a parent has been nearly non

- existent although there is evidence of some interest. The most troubling features of Father’s stated commitment to parenthood are the developments since the birth of [Child].
Seven months after [Child] was born, Father received a parole violation for drugs and weapons, which means that he was engaging in the use of illegal substances. Once incarcerated , his stay was extended as a result of at least two institutional violations. Bottom line: Father has been absent for nearly 2 1⁄2 years of the 3 years of this c hild’s life.

The [c] ourt concludes that Father may well be sincere in his desire to remain as [Child’s] parent. Based on the pattern of Father’s behaviors, the [c] ourt has no confidence that the pattern of behavior of Father will change to the degree that promotes a reunification of Father and Child.
There is no question that [DHS] has demonstrated by clear and convincing evidence that the Father, for at least six months prior to the filing of the p etition on January 4, 2021, failed to perform parental duties, and [DHS] established a pattern of continuing incapacity to care for [Child] . The only question is whether it will be remedied, and the [c] ourt cannot accept Father’s representation that all behavioral issues are resolved.J

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- Secondly, if the [c] ourt were to deny [DHS’s] Petition, it would at the very minimum extend the uncertainty for this child indefinitely. A number of the ordered components of the family service plan remain uncompleted. Father would have to complete all of them satisfactorily and endure a graduated physical custody schedule. During this period of time he would be under state supervision and any violations would either serve to extend the uncertainty for this child or
cause [DHS] to refile for termination.
( Findings of Fact and Conclusions of Law at 8

- 9). We accept the court’s
analysis, which is supported by the record. See In re Adoption of C.M ,
supra

.
T he court did not err in determining that Father’s incapacity caused Child
to be without essential parental care, and the causes of the incapacity cannot

or will not be remedied. See In re Z.P. , supra . Father’s plan to straighten

out his life following his release from prison does not nec essitate a disruption
of the stability that Child currently enjoys

. See Interest of K.M.W., supra

.
R egardless of any bond between Father and Child, terminating Father’s
parental rights does not destroy an existing, neces sary, and beneficial
relationship for Child. See I n re Z.P., supra

. Child can achieve permanency
with Aunt and Uncle, who adopted Child’s siblings and provide d Child with

necessary care since his placement

. Thus , our review confirms that clear and
convincing evidence supported termination of Father’s parental rights under
Sections 2511(a)(2) and (b). Id. Accordingly , we affirm the order
terminating Father’s parental rights.

Order affirmed.J

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 03/25/2024