J

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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: M.G.B., A MINOR

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

PENNSYLVANIA

No. 2688 EDA 2019 Appeal from the Order Entered August 15, 2019 In the Court of Common Pleas of Montgomery County Orphans' Court at No(s): No. 2018

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BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.: Filed: April 15, 2020
J.B. (Father) appeals from the decree entered on August 15, 2019, that
granted the petition filed by the Montgomery County Office of Children and
Youth (OCY or Agency) seeking the involuntary termination of Father’s
parental rights to M.G.B. (Child), born in June of 201 6

. 1 We affirm.

Child is medically fragile. She was born prematurely in Kansas, where
Mother was living at the time, a nd suffered neonatal complications. Child
spent the first six months of her life in the hospital a nd then was in Mother’s
sole care for the next few months. In May of 2017, Mother took Child on a
trip to Pennsylvania to visit family. OCY first became involved with the family
on May 21, 2017, when Child was hospitalized in Philadelphia for acute alcoh ol

_________________ __________ ______ ____ _______

1 J.N.L.’s (Mother ) parental rights to Child were also terminated on the same date. Mother filed a separate appeal with this Court, w hich is addressed in a separate memorandum at No. 2687 EDA 2019.J

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poisoning , caused by M other’s mixing of Child’s formula with vodka instead of

water. OCY obtained custody of Child on June 13, 2017, when she was

release d from the hospital, and placed her directly into in the care of her pre

adoptive foster mother

. On May 3, 2019, OCY filed its petition for termination of Father’s rights
and alleged grounds under 23 Pa.C.S. § 2511( 1), (2), (8) and (b). A
termination hearing was held on August 14, 2019, at which the orphans’ court
found that the following facts had been established:

[Father] ... acknowled ged that he knew about [Mother’s] pregnancy before ... [C]hild was born, that he drove ... [Mother] to the airport when she was pregnant and intended to go to Kansas, that he knew that ... [C]hild was his....

He also testified that he remained in touch with ... [M]other when she was in Kans as and during the period that ... [C]hild was born prematurely and hospitalized for a period of six months. From his testimony[,] we know that he did not go to Kansas, and he provided no evidenc e that he provided for ... [C]hild in any way during the ten months that she was [a] resident with

... [M]other in Kansas. He did not see ... [M]other or ... [C]hild until May of 2017, when ... [M]other had briefly returned to Pennsylvania. He saw her then on on e occasion shortly before [Child] was injured

... when ... [M]other gave her vodka mixed with baby formula on May 21 st

. After that, ... [F]ather testified that he

... was not in touch with ... [M]other and did not know w here she was. By that time,

... [C]hild was h ospitalized, and ... [M]other was arrested and incarcerated in Pennsylvania. In fact, he assumed she had gone back to Kansas. The only explanation he provided for the lengthy period of time prior to 2019[,] when he had virtually no contact with

... [C]hild , no visits with

... [C]hild, was that he did not

— it was that for the first year or fi rst ten months, he knew where ... [C]hildJ

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was, but she was in Kansas[] and[,] thereafter[,] he didn’t know where [she] or ... [M]other was.
The testimony established that [O CY] was not made aware of ... [F]ather’s identity by ... [M]other, even though ... she had an obligation to cooperate with [OCY] and provide his identity. It was only through the efforts of [OCY] combing through the records, including medical records from Kan sas, that they did identify ... [F]ather’s name, and [OCY] actually affirmatively reached out to him. He testified that he responded promptly to [OCY] and asserted in ... March of 2018 that he wished to participate and have a relationship with his daughter but having not had a relationship prior to that point.
N.T. Termination, 8/14/19 , at 249

- 51. The orphans’ court determined that
OCY had proven Father’s parental rights should be terminated pursuant to
sections 2511(a)(1) and (b) and entered a final decr ee, accordingly, on August

15, 2019.

On August 28, 2019, Father filed a timely notice of appeal, along with a
timely Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Herein, Father raises the following issues for our review:

I. [Whet her] the [orphans’] [c]ourt committed an error of law and/or abuse of discretion when it held that [OCY] had proven by “clear and convincing evidence” that [Father’s] parental rights should be ter minated pursuant to 23 Pa.C.S. § 2511(a)(1)[,] where [Father ] was making substantial progress on his Family Service Plan[s] goals as evidenced by the testimony at the hearing and Family Service Plans themselves[?]

II. [Whether] the [orphans’] court committed an error of law and/or abuse of discretion when it terminated [Father’s] parental rights pursuant to 23 Pa. C.S. § 2511(b) on the basis that the developmental, physical, [and] emotional ... welfare of ... [C]hild[] was best served by termination of []J

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- [F]ather’s rights where he was making substantial progress on the Fam ily Service Plans[?]

Father’s Brief at 4.
We review an order terminating parental rights in accordance with the
following standard:

W hen reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary suppor t 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. 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. , 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H. , 879
A.2d 802, 805 (Pa. Super. 2005 )). Moreover, we have explained that:

The standard of clear 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.”

Id. (quoting In re J.L.C. & J.R.C. , 837 A.2d 1247, 1251 (Pa. Super. 2003)).

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) . If

competent evidence sup ports 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).J

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We are guided further by the following: T ermination of parental rights

is govern ed by section 2511 of the Adoption Act, which requires a bifurcated

analysis.

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 parent’s conduct warra nts 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) (ci ting 23 Pa.C.S. § 2511,

other citations omitted). The burden is upon the petitioner to prove by clear
and convincing evidence that the asserted grounds for seeking the termination

of parental rights are valid. R.N.J. , 985 A.2d at 276.

With regard to s ection 2511(b), we direct our analysis to the facts

relating to that section. This Court has explained that:

Subsection 2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. In In re C.M.S. , 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, “Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child.” In addition, we instructed that th e trial court must also discern the nature and status of the parent

- child bond, with utmost attention to the effect on the child of permanently severing that bond. Id. However, in cases where there is no evidence of a bond between a parent and child, it is reasonable to infer that no bond exists. In re K.Z.S. ,J

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946 A.2d 753, 762

- 63 (Pa. Super. 2008). Accordingly, the exten t of the bond

- effect analysis ne cessarily depends on the circumstances of the particular case. Id. at 763. In re Adoption of J.M. , 99 1 A.2d 321, 324 (Pa. Super. 2010).

W e n eed only agree with the orphans ’ court as to any one subsection of

section 2511(a), as well as section 2511(b), in order to affirm. In re B.L.W. , 843 A.2d 380, 384 (Pa. Super. 2004) ( en banc ). Here in , we analyze the

court’s decision to t erminate under section 2511(a)(1 ) 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:

(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

.

***

(b) Other considera tions.

-- 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 facto rs 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 pa rent 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. § 2511(a)(1 ), (b).J

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We first address whether the trial court abused its discretion by
terminating Fathe r’s parental righ ts pursuant to section 2511(a)(1 ).

To satisfy [s]ection 2511(a)(1), the moving party must produce clear and convincing evidence of conduct sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties.

In re C.M.S. , 832 A.2d 457, 461 (Pa. Super. 2003) (quoting Matter of
Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)). In C.M.S. ,

we further acknowledged the following statement by our Supreme Court:

There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the develop ment of the child. Thus, this [C] ourt has held that the parental obligation is a positive duty which requires affirmative performance. This affirmative duty en compasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child. Because a child needs more than a benefactor, parental duty requires that a parent ‘ex ert himself to take and maintain a place of importance in the child’s life[.’]

C.M.S. , 832 A.2d at 462 (quoting In re Burns , 379 A.2d 535, 540 (Pa.
1977)).
Instantly, Father avers that the orphans’ court erred in terminating his
parental rights under s ection 2511(a)(1). Father’s only argument is that he
“had been making substantial progress o n his Family Service Plan goals[,] ” at
the time that OCY filed its petition for termination. Father’s Brief at 5

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Although Father does appear to have complied with some of his initial Family
Service Plan goals , i.e. , evaluations for drug and alcohol treatment, mental
health evaluations, and maintaining stable housing, his progress has been

inconsistent. Father has been employed, but was working minimal hours ov er
the past year due to medical issues. N.T. Termination at 174. He testified
that his employment had just become more stable during the four weeks prior
to the termination hearing. Id. at 185. Father also indicated that he
straightened out his substan ce abuse issues “for the past year now[,]” but
also admitted to “some slipups” with the use of alcohol and marijuana. Id.
Moreover, the record is void of any evidence of affirmative action on the part

of Father t o perform his parental duties and/or to develop any sort of parental
relationship with Child.

At the conclusion of the terminati on hearing, the orphans’ court opined

on the record:

I conclude from the evidence that was presented ... that [Father ] became aware that ... [C]hild was in the custody of [OCY] in March of 2018. A DNA test ... was ordered by the court and came back positive, and both [Father] and [OCY] had been notified of the positive results by April of 2018. This [c]ourt was asked to consider granting visits to b oth of the birth parents ... an d was asked to consider by the [g] uardian ad [ l ] item that because of the aggravated circumstances , no reunification efforts should be made. A petition to that effect was filed by the [ g ] uardian ad [ l ] item in this case and was scheduled for a hearing. By April of 2018, the [c]ourt ordered that [M]other and [F]ather

... cooperate with OCY and follow through with recommendations. They were ordered to both obtain drug and alcohol and mental health evaluations and provide copies t o OCYJ

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and that supervised visits may be scheduled at the OCY’s discretion with either [M]other or [F]ather following a review of the drug and alcohol evaluations. That was this court’s order dated April 30[], 2018. In addition, at a subsequent permanen cy review hearing, after the [A]gency did receive mental health evaluations for ... [M]other and ... [F]ather, the [c]ourt was more specific in permitting visits to begin to be scheduled.
On June 26[], 2018, the [c]ourt ordered that reunification efforts sh all be made with ... [M]other and ... [F]ather.... So[,] well over a year ago, ... [F]ather was in a position to persuade OCY that [,] having obtained [a] drug and alcohol evaluation and mental health evaluation and either complying with the recommendations or hav ing no recommendations he needed to follow up on,

... visits [should] begin.
Sometime in 2019, he had complied with the evaluation requirements and had the opportunity again to ask for visits . Ms. Spano [, an OCY caseworker,] ... testified that she expects a parent to reach out to her to seek to schedule visits. He certainly knew her phone number, had her contact information, and had the opportunity to reach out and schedule visits. While his counsel suggests that he complied wit h the recommendations of th e [F]amily [S]ervice [P] lan, initially those recommendations and goals were limited to getting him in a position to begin visits with

... [C]hild so that he could [,] for the first time[,] begin to establish a relationship with [her].
[C]hild is now over t hree years old, and the first visit that [Father] had with her occurred or was scheduled for August 1[], 2019. Even that visit was terminated early by the caseworker due to the inappropriate and aggressive behavior and inappropriate language used towards the caseworker by [Father]. Simply put, [Father] has not availed himself of the opportunity to have visits, which the [c]ourt and the [A]gency [have] attempted to make available to him, and [he] has not taken adequate steps to develop any relationship w ith ... [C]hild, much less a positive, nurturing, close, stable, reliab le parental relationship with ... [C]hild. As I said, the factors I’m required to consider with respect to a request for termination of parental rights under [s]ectionJ

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2511(a)(1) [are] i f a parent has failed to perform parental duties for a period of more than six months, as is the case here, what is the parent’s explanation for his or her c onduct[,] and what has been the quality of the contact he’s had once he resumed contact [,] and what would be the effect of termination of parental rights. For the most recent period, [Father] candidly told the [c]ourt that he had some health problems that caused him perhaps to have some delay in setting up the visits, but that’s simply not an adequat e explanation for three years of no meaningful efforts to create a meaningful relationship with

... [C]hild. There has been virtually no contact except at a couple of court hearings and the one aborted August 1[], 2019[] visit between [Father] and [C]hild . Therefore, no relationship has been created. The quality of the contact has not been beneficial to

... [C]hild, and the termination of parental rights would not be detrimental to [her]. Therefore, I conclude that under [s]ection 2511(a)(1),

... OCY has proved by clear and convincing evidence the elements required that a ground for termination of parental rights with respect to [Father] has been established.

N.T. Termination at 253

- 57. After careful review, we discern that the court’s

determinations ar e well

- supported by the record.
As for the orphans’ court’s analysis under section 2511(b), Father baldly
asserts that the court failed to take into consideration “how well” he was doing
in complying with his Family Service Plan goals and the fact that he was
“beginning to seek visitation.” Father’s Brief at 8. The orp hans’ court
concluded, however, that “[F]ather has not est ablished a parental bond with

... [C]hild and there would be no detriment to

... [C]hild of severing that
parental bond.” N.T. Termi nation at 265. “In the meantime,” the court added,
“[C]hild has been raised in a home that is described as loving and secure

where she is bonded and attached.” Id. at 266.J

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The following observations of OCY further support the orphans’ court’s

determina tion:

Father has had only one visit with ... Child since her placement into foster care on June 13, 2017[,] and has failed to act in a parental capacity to provide for all of ... Child’s needs. Father has not provided a home for ... Child or demonstrated he can be a safe and stable caregiver for ... Child. Consequently, the [orphans’] court properly concluded that a bond between Father and ... Child does not exist and that ... Child would not suffer a d etriment as a result of termination of Father’s parental righ ts. Furthermore, the evidence established that ... Child has resided in a pre
- adoptive home since June 13, 2017. [] Child is living in a nurturing and loving environment with her foster family. Her foster mother is meeting all of her needs[,] including h er special medical needs. [] Child needs stability and a permanent ho m e through adoption.

OCY’s Brief at 14. Moreover, the record reflects that Child has bonded with
her foster mother, “is being nurtured by her and is thriving with her [;] she

looks t o her for support and security. ” Child’s Brief at 32. Counsel for Child

adds that the foster mother is “ready, willing, and able to parent ... [C]hild,
and she wants to have ... [C]hild be a permanent part of the family.” Id. We

ascertain no abuse of discr etion or error of law by the trial court.
Accordingly, we affirm the decree terminating Father’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(1) and (b).

Decree affirmed.J

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J udgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/15/20