J-S05015-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 IN RE: THE ADOPTION OF: S.L.B., JR. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : APPEAL OF: S.B., SR., FATHER : No. 1517 WDA 2014

Appeal from the Decree August 15, 2014, Court of Common Pleas, Erie County, Orphans’ Court at No: 12 in Adoption 2014 BEFORE: DONOHUE, SHOGAN and STABILE, JJ. MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 06, 2015 S.B., Sr. (“Father”) appeals from the trial court’ s August 15, 2014 decree, which granted the petition filed by Erie Co unty Office of Children and Youth (“the Agency”) to involuntarily terminate his parental rights to S.L.B., Jr. (“Child”) pursuant to 23 Pa.C.S.A § 2511(a)(1), (2), (5) and (b) of the Adoption Act. For the reasons that follow, we affi rm. The trial court summarized the facts and procedura l history of this

case as follows:

[Child] was born on September 2, 2011 to [B.D.] [(“Mother”)] and [Father]. Mother died from complications of Chronic Obstructive Pulmonary Disease on November 4, 2011 when [Child] was only two (2) months old. [Child] remained in the care o f Father until [December 2012] when Father was incarcerated, then transferred to a treatment facil ity to address his addiction and mental health problems

. On his own, Father arranged for [Child’s] maternal aunt to care for [Child] and [he] has been in her c are since.J-S05015-15

- 2 - On [April 14, 2013,] the Pennsylvania State Police responded to a phone complaint reporting [that Father] removed his son from the home of the maternal aunt. Father was staying at a hotel. When the police eventually found him they were concerned enough about his behavior to call [the Agency] for assistance. The caseworker arrived and efforts wer e made by both the police and the caseworker to coax Father into returning [Child] to his aunt. He refu sed to cooperate and clearly was behaving in a strange way. The [c]ourt [s]ummary dated February 24, 2014 reports [that] Father acted “agitated and erratic” in his responses to the police and the caseworker. [Father] “was chanting and acting in a bizarre manner.” Most disturbing, however, [Child] , while in the custody of [Father], wore no socks, shoes or coat. Ultimately, the police called Crisi s Services. They proceeded with an involuntary mental health commitment. A verbal [d]etention [o]rder was obtained for [Child], he was returned t o his aunt [and] then adjudicated dependent on April 25, 2013. A [d]ispositional [h]earing took place on May 22, 2013 and a written [o]rder entered one week later. The goal at the time was to reunify Father with his son. To achieve the goal, the [c]ourt ordered [Father] to refrain from using drugs or alcohol; complete drug and alcohol treatment and submit to random urine testing; complete parenting classes; demonstrate the ability to provide for the health, safety and welfare of [Child]; visit [Child] with a ll visits contingent on [Father]’s drug[-] and alcohol free[-]state; secure employment; secure stable and safe housing; and pay child support. The first permanency review was held on October 2, 2013 with a written [o]rder following the next day. The [c]ourt found Father had only moderately complied with the May permanency plan because he used drugs or alcohol on at least two occasions. T heJ-S05015-15

- 3 - [c]ourt further found there was minimal progress toward alleviating the circumstances which necessitated the original placement. A review was scheduled in four months. The goal of reunificatio n remained unchanged. Trial Court Opinion, 10/10/14, at 5-7. A second permanency review hearing occurred on Feb ruary 24, 2014. On February 27, 2014, the trial court ordered the p ermanency goal changed from reunification to adoption. On March 25, 2014, Father filed a timely notice of appeal from that order, and on August 27, 2014, this Court

affirmed. See In re S.B., Jr. , 495 WDA 2014 (August 27, 2014) (unpublished memorandum). On March 4, 2014, during the pendency of that appeal, the Agency filed a petition to involun tarily terminate Father’s parental rights to Child. On August 15, 2014, the trial court held a hearing on the petition, at the conclusion of which it orde red the involuntary termination of Father’s parental rights. On August 25, 2014, Father filed a post-trial motion for relief requesting reconsidera tion of the involuntary

termination decree. The trial court denied this mo tion on August 27, 2014. On September 11, 2014, Father filed a timely notice of appeal and concise statement of the errors complained of on appeal. On appeal, Father raises the following issues for our review and

determination:

1. Did the [trial court] commit an abuse of discretion or error of law when it concluded that t heJ-S05015-15

- 4 - Agency established sufficient grounds for terminati on under 23 Pa.C.S.A. § 2511(a)(1)? 2. Did the [trial court] commit an abuse of discretion or error of law when it concluded that t he Agency established sufficient grounds for terminati on under 23 Pa.C.S.A. § 2511(a)(2)? 3. Did the [trial court] commit an abuse of discretion or error of law when it concluded that t he Agency established sufficient grounds for terminati on under 23 Pa.C.S.A. § 2511(a)(5)? 4. Did the [trial court] commit an abuse of discretion or error of law when it concluded that termination of [Father]’s parental rights was in [Child]’s best interests under section 2511(b)? 5. Was appointed-counsel ineffective in his representation of [Father] at the IVT trial?

Father’s Brief at 7. 1 We begin by addressing Father’s claims relating to sections 2511(a) and (b) of the Adoption Act. Our standard of revie w for cases involving the termination of 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 supporte d by competent evidence. Absent an abuse of discretion, an error of law, or insufficient eviden tiary 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

1 We reordered Father’s issues for ease of review.J-S05015-15

- 5 - record in order to determine whether the trial cour t’s decision is supported by competent evidence.

In re J.F.M. , 71 A.3d 989, 992 (Pa. Super. 2013) (quoting In re R.N.J. , 985 A.2d 273, 276 (Pa. Super. 2009)). “The trial c ourt is free to make all credibility determinations, and may believe all, pa rt, or none of the evidence presented.” Id. Importantly, “[i]f the findings of the trial cour t are supported by competent evidence, we will affirm eve n if the record could also support the opposite result.” Id. When deciding a case falling under section 2511, t he trial court must engage in a bifurcated process. In re B.C. , 36 A.3d 601, 606 (Pa. Super. 2012). In that analysis,

[t]he initial 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 at least one of the nine statutory ground s in section 2511(a). If the trial court determines tha t the parent’s conduct warrants termination under section 2511(a), then it must engage in an analysis of the best interests of the child under section 2511(b), taking into primary consideration the developmental, physical, and emotional needs of the child.

Id . First, Father challenges the termination of his rig hts under section 2511(a). We note that the trial court terminated F ather’s parental rights to Child pursuant to subsections (1), (2), and (5) of section 2511(a). Notably, “[t]his Court may affirm the trial court’s decision regarding the terminationJ-S05015-15

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of parental rights with regard to any one subsectio n of [s]ection 2511(a).”

In re B.L.W. , 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). A ccordingly, we focus our analysis on section 2511(a)(5). Section 2511(a)(5) provides: (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:

* * * (5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least 6 months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of parental rights would best serve the needs and welfare of the child. 23 Pa.C.S.A. § 2511(a)(5). The certified record on appeal supports the trial court’s decision to terminate Father’s parent rights under section 2511 (a)(5). Child has been out of Father’s care for a period of at least six m onths as he was adjudicated dependent on April 25, 2013, and has remained in th e care of his maternal

aunt since that time. See N.T., 8/15/14, at 15-16. The record reflects that Father has a history of abusing heroin, cocaine, an d alcohol and that FatherJ-S05015-15

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suffers from bipolar disorder and antisocial person ality disorder. N.T., 2/24/14, at 20. The trial court indicated that the conditions that led to the removal of Child from Father’s care were his drug a nd alcohol abuse and his

mental health issues. See Trial Court Opinion, 10/10/14, at 5-6, 11-12.

The certified record further reveals that the condi tions that led to the

removal of Child continue to exist and Father will not remedy those conditions within a reasonable time. Following the events of April 14, 2013, which led to Child’s removal from Father’s care, Fa ther underwent an inpatient psychiatric evaluation at Saint Vincent H ealth Center (“Saint Vincent”). See Saint Vincent Psychiatric Evaluation, 4/16/13. Th is evaluation indicated that Father was suffering from bipolar disorder and that he was behaving in an anxious, impulsive, and psych otic manner. Id. at 3.

This evaluation also revealed that Father was exhib iting “poor insight, poor judgment, and poor impulse control.” Id. Father’s discharge assessment indicated that his mental health gradually improved with medication. Saint Vincent Discharge Assessment, 5/1/13, at 1. Father ’s discharge assessment instructed that Father was to continue taking medic ation for his bipolar disorder and follow-up with an outpatient psychiatr ist. See id. at 2. After Child’s dependency adjudication, the trial co urt ordered Father to “successfully complete a mental health evaluation, comply with treatment recommendations, and demonstrate mental health stab ility.” Trial Court Order, 5/29/13, at 1-2. Patty Bush (“Bush”), a cas eworker at the Agency,J-S05015-15

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testified that Father received biweekly mental heal th therapy from Stairways Behavioral Health beginning in June 2013 through No vember 2013, at which time he was incarcerated for a probation violation. 2 N.T., 8/15/14, 55-58. Since November 2013, Father has not been receiving any treatment for his mental health problems. Id. at 57, 59. Bush further testified that as of February 2014, around the time the trial court chan ged Child’s goal from reunification to adoption and just prior to the Age ncy filing the petition to terminate Father’s parent rights, Father continued to have the same mental health problems that led to Child’s dependency adju dication and was in no better position to raise Child. Id. at 60. Additionally, Father himself testified that he is n ot currently taking any medications or seeing a psychiatrist. Id. at 91. In fact, there is no evidence that Father has been taking medication for his ment al health problems since he left Saint Vincent in early May 2013. Father st ated that he is dealing with his mental health issues with the use of “spiritual principles” and “positive

affirmations.” Id. at 92. Thus, Father admitted that, despite the tr ial court’s May 29, 2013 order in the dependency matter , he is not currently and has not recently been receiving treatment for h is mental health diagnoses. See id. at 91-92; Trial Court Order, 5/29/13, at 1-2. Rat her, Father believes that he is “in a real good place to day,” and that he does not

2 The record indicates that Father was released fro m prison on December 9, 2013. N.T., 8/15/14, at 33.J-S05015-15

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need any other type of help for his mental health i ssues. See N.T., 8/15/14, at 92. Furthermore, Father’s probation officer test ified that Father has told

her that he does not believe that he has mental hea lth problems and that he does not need any medications. Id. at 35. The trial court found the testimony regarding the s tate of Father’s

mental health was credible and that Father’s contra ry testimony was not worthy of belief. See Trial Court Opinion, 10/10/14, at 12-13. We are bound by this determination as “[t]he trial court i s free to make all credibility determinations, and may believe all, part, or none of the evidence presented.” J.F.M. , 71 A.3d at 992. Thus, the record reflects that t he

conditions that led to Child’s removal continue to exist and that Father is unwilling to remedy these conditions. See N.T., 8/15/14, at 35, 60, 91-92. Father argues that he recently met with a psychiatr ist who diagnosed him with “situational depression” and told him that he did not need medication. Father’s Brief at 18-19. However, Fat her only relies on his own testimony to support this assertion and, as previou sly stated, the trial court found Father’s testimony was not credible. See Trial Court Opinion, 10/10/14, at 12-13. Moreover, Father’s own testimo ny indicates that this psychiatrist instructed Father that medication was not necessary for his mental health problems only if he was active in cou nseling, and Father testified that he was not in counseling and does no t believe he needsJ-S05015-15

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counseling. N.T., 8/15/14, at 90-92. Accordingly, this argument affords

Father no relief. The record further supports a finding that terminat ion of Father’s parental rights would best serve the needs and welf are of Child. As stated above, Father has failed to follow through with res olving his mental health issues, which served as a basis for the finding of dependency, as it left Child without proper parental care and control as require d by law. See 42 Pa.C.S.A. § 6302(1). Child has lived with his mate rnal aunt fulltime since April 2013. See N.T., 8/15/14, at 15-16. Child’s maternal aunt pro vides day-to-day comfort and care for Child and takes him to all of his medical appointments. Id. at 61. Bush testified that terminating Father’s p arental rights would provide Child with the stability and p ermanency that he needs.

Id. at 60-61. Therefore, the Agency produced sufficie nt evidence to permit the termination of Father’s parental rights pursuan t to section 2511(a)(5). Father also challenges the trial court’s determinat ion with regard to section 2511(b). Section 2511(b) provides:

(b) Other considerations.-- The court in terminating the rights of a parent shall give prima ry consideration to the developmental, physical and emotional needs and welfare of the child. The righ ts 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 paren t.J-S05015-15

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23 Pa.C.S.A. § 2511(b). When undertaking this inqu iry, the trial court must consider whether termination of parental rights wou ld best serve the developmental, physical and emotional needs of Chil d. In re C.M.S. , 884 A.2d 1284, 1286-87 (Pa. Super. 2005), appeal denied , 897 A.2d 1183 (2006). “Intangibles such as love, comfort, securi ty, and stability are involved in the inquiry into the needs and welfare of the child.” Id. at 1287 (citation omitted). The trial court must also disc ern the nature and status of the parent-child bond, with the utmost attention to the effect on the child of permanently severing that bond. See id. Considering this aspect of the termination proceedi ngs, the trial court

found as follows:

[Child] has lived with his maternal aunt since he w as adjudicated dependent, more than half his life. There is no evidence to show or suggest he is not i n a good home where he is loved and his needs met. There is also no evidence to show there is a strong bond between [Child] and Father that requires reunification. On the contrary, to remove [Child] from the care of his aunt to return him to his Fath er can only cause significant and irreparable harm, something that is not in his best interests. Trial Court Opinion, 10/10/14, at 13. The certified record on appeal supports the trial court’s analysis. As we established above, Child has lived with his mate rnal aunt since prior to his adjudication of dependency. See N.T., 8/15/14, at 14, 16. Child’s maternal aunt testified that she provides for all o f his needs, including food,J-S05015-15

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clothing, comfort, and education. Id. Child’s maternal aunt testified that she is willing to adopt Child and that he has becom e a part of her nuclear family. Id. 17-18. The certified record further reflects that there is not a strong bond between Child and Father. Following Ch ild’s dependency adjudication in April 2013, Father was to have two visits with Child per month and those visits were contingent on Father be ing drug and alcohol free. Trial Court Order, 5/29/13, at 1-2. From Ju ly 2013 until January 2014, Father missed seven visits with Child due to drug and alcohol relapses. N.T., 8/15/14, at 47. Despite not regul arly seeing Father, Child does not ask about his Father, where he is, or why is not around. Id. at 16- 17, 62. Indeed, Bush testified that she witnessed no detrimental effect to Child by not seeing Father. Id. at 62. Father argues that he does have a strong bond with Child and that the end of visits between Father and Child have been pr oblematic for Child. Father’s Brief at 20. Father once again only relie s on his own testimony to support this assertion. See id. As we have previously established, the trial court found Father’s testimony was not credible and we are bound by that

determination. See Trial Court Opinion, 10/10/14, at 12-13; J.F.M. , 71 A.3d at 992. Moreover, Richelle Bann, a case aide at the Agency, testified

that it was Father who became emotional at the conc lusion of a visit with Child in January 2014, and it was Father’s behavior that upset Child and made the separation difficult for Child. N.T., 8/1 5/14, at 50. Accordingly,J-S05015-15

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we conclude that the trial court did not abuse its discretion in terminating Father’s parental rights with respect to Child. As his final issue on appeal, Father argues that h is trial counsel was ineffective in his representation of Father through the involuntary termination of parental rights proceedings. Father ’s Brief at 21-24. This Court has stated that in a termination of parental rights case, “[a]ny

determination as to ineffectiveness of counsel must be made expeditiously in the context of the original appeal, as a collateral attack by post-decree petition and/or appeal, after normal appeals have b een exhausted, is not permissible.” In re S.W. , 781 A.2d 1247, 1249 (Pa. Super. 2001) (quoting

In re T.M.F. , 573 A.2d 1035, 1043 (Pa. Super. 1990) (en banc)). “The overriding consideration in this respect is ... wheth er the result would likely have been different if there had been a more perfec t stewardship.” Id. Furthermore, the “[m]ere assertion of ineffectivene ss of counsel is not the basis of a remand or rehearing, and despite a findi ng of ineffectiveness on one or more aspects of the case, if the result woul d unlikely have been different despite a more perfect stewardship, the d ecree must stand.” Id. (quoting T.M.F. , 573 A.2d at 1044). Here, Father’s appellate counsel states that he is not aware of any rule for alleging ineffectiveness in a termination of pa rental rights appeal. Father’s Brief at 21. As a result, he only lists, verbatim as written by Father, eight paragraphs containing multiple allegations of ineffective assistance ofJ-S05015-15

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counsel on the part of trial counsel. See id. at 21-24. Appellate counsel does not make any argument on Father’s behalf as to how trial counsel’s alleged ineffectiveness prejudiced Father. See id. Father’s list of ineffectiveness allegations likewise contains no su ch argument. See id. As a result, we only have the mere assertion of ineffe ctive assistance of counsel, which, as stated above, does not provide t his Court with a basis to

afford Father relief. See S.W. , 781 A.2d at 1249. Moreover, the eight allegations of ineffectiveness raised are meritless. Father makes three complaints relating to trial cou nsel’s alleged failure to inform the trial court that a psychiatrist diagnose d him with “situational depression” and told him that he did not need to be medicated. See Father’s Brief at 21-23. Father also complains tha t trial counsel failed to

inform the trial court of the bond he shared with C hild. Id. at 23. As we established above, however, Father testified to eac h of these issues himself. Thus, the trial court was made aware of this inform ation, rendering Father’s

claims of trial counsel’s ineffectiveness in these regards meritless. Father further alleges that trial counsel failed to inform the trial court of his successful completion of parenting classes. Father’s Brief at 21-23. Father also complains about having to testify in na rrative form and the fact that trial counsel only called one witness on his b ehalf. Id. at 23-24. He does not give any indication as to what additional witnesses trial counsel could have called in support of his case. See id. Moreover, our review ofJ-S05015-15

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the trial court’s opinion reveals that it terminate d Father’s parental rights because of his inability to parent Child based upon his continued insistence that he had no mental health problems and his refus al to participate in treatment. Trial Court Opinion, 10/10/14, at 15. Thus, these allegations of ineffectiveness had no impact on the outcome of the case. Lastly, Father complains that trial counsel did not file a brief on his behalf for his appeal stemming from the goal change from reunification to adoption. Father’s Brief at 24. Our review of the prior decision by this Court does not support this claim. See S.B., Jr. , 495 WDA 2014 at 2. Father’s appellate counsel likewise acknowledges that this c laim is frivolous. See

Father’s Brief at 21 n.2.

Decree affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 2/6/2015