J-S45014- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: D.N.M., A MINOR, IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: R.M., FATHER, Appellant No. 511 EDA 2014

Appeal from the Order Entered January 8 , 2014 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP

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- AP -0000711-2013, CP- 51

- DP -0001380-2011, FID: 51- FN

- 002998

- 2011
BEFORE: BOWES, WECHT, and FITZGERALD, * JJ. MEMORANDUM BY BOWES, J.: FILED AUGUST 08, 2014 R.M. (“Father”) appeals from the order entered Januar y 8, 2014, wherein the trial court involuntarily terminated hi s parental rights to then six-year-old D.N.M. 1 We affirm. The Philadelphia Department of Human services (“DHS”) fi rst became involved with this family on June 14, 2011, after it received a General Protective Services (“GPS”) report alleging that D.D. (“ Mother”) had been involuntarily hospitalized for mental health treatm ent following a psychotic

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* Former Justice specially assigned to the Superior Court.

1 The parental rights of Mother and the father of D.N. M.’s younger sibling were also terminated at the same proceeding. Mother and the other father have filed separate appeals, which are before this pan el.J-S45014- 14

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episode. The report, which was later substantiated, fur ther alleged that Mother chronically used drugs, abused PCP, angered easily, screamed and yelled at the children, and hit D.M.N. in a heavy-ha nded manner. Father was incarcerated, and D.M.N. and her younger sibling we re placed in the care of their maternal grandmother. Mother indicated that she would enter an inpatient dr ug and alcohol rehabilitation program. The children remained with maternal grandmother and a safety plan was implemented. Mother returned t o maternal grandmother’s home upon her discharge. DHS learned th at the children were not being properly cared for and obtained Order s of Protective Custody (“OPC”). On July 7, 2011, the children w ere placed with their maternal aunt, K.S. At the July 8, 2011 shelter care hearing, the O PC was lifted and the children’s temporary commitment to DHS was ordered to st and. Following a hearing on July 13, 2011, D.M.N. and her sister were adjudicated dependent and placed together with the maternal aunt, where th ey remained until March 2012, when they were placed in their present pre -adoptive foster home. Mother was referred to for a dual diagnosis ev aluation and Father was referred to the Achieving Reunification Center (AR C). A permanency review hearing was held on October 6, 201 1. Although Father had been contacted by DHS social worker Akilah O wens, he did not respond. Father remained incarcerated and did not par ticipate in the January 27, 2012 Family Service Plan (“FSP”) meeting. His FSP objectiveJ-S45014- 14

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was to contact DHS so that services could be made available to him. At a subsequent FSP meeting on July 10, 2012, additional o bjectives of parent training and drug and alcohol treatment were added f or Father. DHS decide to change D.M.N.’s placement goal at the De cember 28, 2012 FSP meeting. At that point, Mother was not pro gressing in her meeting her objectives, Father remained incarcerated, a nd D.M.N. had been in foster care since July 2011. Father was to contact D. N.M. through letters, attend parenting classes and participate in counseling. At the permanency hearing on March 20, 2013, the court listed the matte r for a goal change/involuntary termination of parental rights pro ceeding. During the latter half of 2013, Father responded to DHS correspon dence to decline visitation with his daughter in prison as he did not fe el it was appropriate. He also expressed that he did not want his daughter to be placed with her sister’s father. On August 14, 2013, DHS informed the court of its int ention to seek involuntary termination and a goal change to adoptio n. On December 20, 2013, DHS filed petitions to that effect, and followi ng a hearing on January 8, 2014, the trial court terminated both Father and Mother ’s parental rights to D.N.M. pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5) and (8). Father filed the instant appeal and complied with Pa.R.A.P. 1925(a )(2)(i) by filing a Rule 1925(b) concise statement of errors complained of on appe al. The trialJ-S45014- 14

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court addressed the arguments in its Rule 1925(a) opinio n. Father presents two questions for our review:
1. Whether the Trial Court erred by terminating the pa rental rights of Appellant, Father, under 23 Pa.C.S.A. § 25 11 subsections (a)(1), (a)(2), (a)(5) and § 2511(a)(8)?
2. Whether the Trial Court erred by finding under 23 P a.C.S.A. § 2511(b), that termination of Appellant’s parental ri ghts best serves the child’s developmental, physical and emotiona l needs and welfare? Father’s brief at 4. The test for terminating parental rights consists of tw o parts. In In re
L.M. , 923 A.2d 505, 511 (Pa.Super. 2007), we explained: Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing eviden ce 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 co urt engage in the second part of the analysis pursuant to Section 25 11(b): determination of the needs and welfare of the child u nder the standard of the 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 clo se attention paid to the effect on the child of permanen tly severing any such bond. “[C]lear and convincing evidence is defined as testimony t hat is so ‘clear, direct, weighty and convincing as to enable the trier of fac t to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.’” In re R.N.J. , 985 A.2d 273, 276 (Pa.Super. 2009) (quoting In re J.L.C. , 837 A.2d 1247, 1251 (Pa.Super. 2003)). When reviewing an order terminating parental rights,J-S45014- 14

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we are limited to determining whether the decision o f the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentia ry support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily termina te parental rights, this Court must accord the hearing judge's decis ion the same deference that we would give to a jury verdict. 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. In re R.N.J. , supra at 276 (quoting In re S.H. , 879 A.2d 802, 805 (Pa.Super. 2005). “[I]f competent evidence supports the court’s findings, we will affirm even if th e record could also support the opposite result.” In re N.C. , 763 A.2d 913, 917 (Pa.Super. 2000). To affirm, w e need only find competent evidence in support of any one of the subsect ions pled. In re S.M.B. , 856 A.2d 1235 (Pa.Super. 2004). Title 23 Pa.C.S. § 2511(a) sets forth the grounds for termination of parental rights and provides in pertinent part: (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 of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties. (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.J-S45014- 14

- 6 - . . . . (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 six 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 reasonable available to the parent are not likely to remedy th e conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best service the needs and welfare of the child.

. . . . (8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.

. . . . 23 Pa.C.S. § 2511. Father’s first contention is that DHS did not produce cl ear and convincing evidence of conduct, sustained for at least six months prior to the filing of the termination petition on December 20, 2 013, which revealed a settled intent on Father’s part to relinquish his paren tal claim or a failure to perform parental duties for purposes of section 2511(a)( 1). According to Father, the evidence established that he met all of his objectives. He made his whereabouts known to DHS in 2012, and he wrote a letter to the socialJ-S45014- 14

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worker in 2013. Furthermore, it was undisputed that Father completed parenting and drug and alcohol classes while incarcerate d. Finally, Father sent letters to D.N.M., spoke to her on the telephone and sent gifts to her. In light of his compliance with his objectives, Father ar gues that DHS failed to prove by clear and convincing evidence that his pare ntal rights should be terminated under (a)(1). DHS counters that, for the first two years when D.N.M. was in placement, Father made no effort to contact her. He e ffectively abandoned her, grounds for termination pursuant to subsection (a)( 1). Father’s first contact with D.N.M. and increased contact with the agency occurred two to three months prior to the termination hearing, and c oincided with the agency’s desire to change D.N.M.’s goal to adoption. Acco rding to DHS, Father was not genuinely interested in a parental rel ationship with D.N.M. or in assuming parental responsibil ities. Nor does Father’s incarceration excuse performance of parental obligations. DHS maintains th at Father remained obligated to utilize available resources “and take affi rmative steps to support a parent- child relationship.” In re Adoption of K.J. , 936 A.2d 1128, 1133 (Pa.Super. 2007). DHS contends that Father did not u tilize the available resources to communicate with his child to that end. Additionally, DHS takes the position that the evidence also satisfied the statutory grounds for termination under (a)(2), s ince Father had not provided parental care and was not in a position to do so due to hisJ-S45014- 14

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continuous incarceration. It relies upon In re Adoption of S.P. , 47 A.3d 817, 828 (Pa. 2012), where our High Court held that incarceration is a factor , “and indeed can be a determinative factor” in the te rmination of parental rights under subsection (a)(2) “where the repeated and continued incapacity of a parent due to incarceration has caused th e child to be without essential parental care, control or subsistence and that th e causes of the incapacity cannot or will not be remedied.” The record indicates that Father had no contact with D.N .M. for more than two years while she was in foster care. In Septemb er 2013, one month after DHS indicated that it would seek a goal change t o adoption, Father initiated contact. The timing of his efforts made the trial court “question the sincerity of Father’s actions.” 2 Trial Court Opinion, 3/11/14, at 6. While he did complete parenting and drug and alcohol class es, Father’s “efforts to foster a relationship with his child were belated[.]” Trial Court Opinion, 3/11/14, at 6. It characterized Father’s role as “a p assive one and akin to that of a pen pal rather than a parent[,]” and found that he “failed to demons trate a persistent interest in his child’s well

- being[.]” Id

.

____________________________________________ 2 While the trial court declined to consider any post-pet ition efforts by Father to remedy conditions described therein pursuant t o 23 Pa.C.S. § 2511(b), it properly considered Father’s efforts to fost er a relationship with his daughter in the months prior to the filing of the goal change/termination petition. However, due to the fact that Father had no contact with D.N.M. for more than two years and only initiated contact upo n learning that DHS intended to seek a goal change to adoption, the trial court was not persuaded that the interest in her well-being was genu ine.J-S45014- 14

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Furthermore, the court found it was unknown when Fath er would be able to parent D.N.M. Id . In essence, the trial court concluded that Father’s incarceration rendered him incapable of parenting and acknowledged that this was a condition that could not be remedied by Fat her for purposes of 23 Pa.C.S. § 2511(a)(2). The law is well settled that “[t]he grounds for termina tion of parental rights under Section 2511(a)(2), due to parental inca pacity 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 K.J. , 936 A.2d 1128, 1132 (Pa.Super. 2007). In consideri ng the effect of incarceration for purposes of subsection (2 ), our High Court stated: we now definitively hold that incarceration, while no t a litmus test for termination, can be determinative of the que stion of whether a parent is incapable of providing "essential pa rental care, control or subsistence" and the length of the remai ning confinement can be considered as highly relevant to whet her "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). See e.g. Adoption of J.J. , 515 A.2d at 891 ("[A] parent who is incapable of performing parental dutie s is just as parentally unfit as one who refuses to perform the du ties."); E.A. P. , 944 A.2d at 85 (holding termination under § 2511( a)(2) supported by mother's repeated incarcerations and failu re to be present for child, which caused child to be without essenti al care and subsistence for most of her life and which cannot be remedied despite mother's compliance with various prison programs).J-S45014- 14

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In re Adoption of S.P. , supra at 830-831. As this Court has repeatedly noted, “ [A] parent's basic constitutional right to the custody a nd rearing of his...child is converted, upon the failure to fulfill...par ental duties, to the child's right to have proper parenting and fulfillmen t of his or her potential in a permanent, healthy, safe environment.” In re K.J. , supra at 1133 (quoting In re N.M.B. , 856 A.2d 847, 856 (Pa.Super. 2004)). In the instant case, the court found a legal basis for terminating Father’s parental rights under 23 Pa.C.S. § 2511(a)(1 ), (2), (5) and (8). We find that the record supports termination of Father’s parental rights under both subsections (a)(1) and (a)(2). 3 The record confirms that Father made very limited outreach to DHS until three months befor e the termination hearing. Similarly, after no contact with his daughte r for more than two years, Father reached out to her at approximately the same time. The trial court correctly noted that Father’s “efforts coincided with [its] decision at the permanency review hearing on August 19, 2013” to schedu le a contested goal change hearing, but that he failed to demonstra te a “persistent interest” in D.N.M.’s well -being. Trial Court Opinion, 3/11/14, at 5. The trial court was unpersuaded that Father, having f ailed to maintain a relationship with D.N.M. during his incarceration, cou ld fulfill his role as

____________________________________________ 3 Since we need only find that one statutory ground for involuntary termination of parental rights was established pursuan t to subsection (a), we do not reach F ather’s contentions regarding subsections (5) and (8).J-S45014- 14

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parent upon release from prison. We agree that Fathe r’s compl etion of parenting and drug and alcohol classes cannot compensate for the fact that he has not been present for much of D.N.M.’s life and t hat he made no effort to contact her for more than two years. Having concluded that the subsection (a) statutory requi rement for involuntary termination of parental rights was establ ished, we must consider whether the record supports the trial court’s conclusion that D.N.M.’s needs and welfare will be met by termination pursuant to su bsection (b). See In
re D.W. , 856 A.2d 1231, 1234 (Pa.Super. 2004). Section 251 1(b) provides in pertinent part: (b) Other considerations. — The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfar e of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate ho using, 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 cou rt shall not consider any efforts by the parent to remedy the condit ions described therein which are first initiated subsequent t o the giving of notice of the filing of the petition. 23 Pa.C.S. § 2511(b). It is well- settled that when evaluating a parental bond, “the cou rt is not required to use expert testimony. Social workers a nd caseworkers can offer evaluations as well. Additionally, § 2511(b) does not require a formal bonding evaluation.” In re Z.P. , 994 A.2d 1108, 1121 (Pa.Super. 2010). Instantly, the DHS social worker Akilah Owens, and the foster care socialJ-S45014- 14

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worker, Zakiah Snead, both testified to the absence of a father-child bond. Ms. Snead represented that, “[D.N.M.] doesn’t know her Fathe r other than what I have presented to her in the last couple of mon ths.” N.T., 1/8/14, at 89. Ms. Owens agreed that there was no “Child/Father b ond” and that termination of Father’s parental rights would have n o negative effect on
D.N.M. Id . at 41. The trial court concluded that there was no evidence presented at the hearing of a parent

– child bond between Father and D.N.M. The court also credited the testimony of Ms. Snead that D.N.M. was “very bonded” to her pre -adoptive foster parents with whom she had resided since July 2011. N.T., 1/8/14, at 88. Ms. Owens, who had observed D.N.M. in the home of her foster parents a least twenty-four times concurred in that
assessment. Id . at 43. The record confirmed that D.N.M. referred to her foster parents as “Mom” and “Dad” and looked to them for nurture. N.T., 1/8/14, at 40, 88. “They care for [D.N.M. and her sist er] like they are their own.” Id . Ms. Snead testified that there would be no negativ e effects upon D.N.M. if the parental rights of Father were termina ted, id . at 89, and opined that adoption was the proper goal for D.N.M. Id . at 90. Additional facts in the record support the trial court’s finding that termination of Father’s parental rights would best sat isfy D.N.M.’s developmental, physical, and emotional needs and welfa re. Father had not seen his daughter for at least two and one-half years a nd had no contact at all for at least two years. Father initiated contact o nly after an impendingJ-S45014- 14

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goal change to adoption was announced in August 2013, and that contact consisted of one supervised phone call and several letters and gifts. Id . at 73 -4. We also view the fact that D.N.M. and her younge r sister are together in the pre- adoptive foster home as highly beneficial in satisfyin g the siblings’

em otional needs and welfare. Based upon the foregoing, we find that DHS satisfied i ts statutory burden pursuant to § 2511(a) and that the terminatio n of Father’s parental rights would serve the best interests of D.N.M. under § 2511(b). Accordingly, we aff irm the order terminating Father’s parental rights as to
D.N.M. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/8/2014