J-S09019-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF L.A.G.G., A 

MINOR

APPEAL OF: P.T., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2984 EDA 2016

Appeal from the Decree entered August 5, 2016

In the Court of Common Pleas of Montgomery County 

Orphans’ Court at No: No. 2016-A0072

BEFORE: SHOGAN, STABILE, and PLATT*, JJ.

MEMORANDUM BY STABILE, J.: FILED APRIL 12, 2017

P.T. (“Father”) appeals from the August 5, 2016 decree involuntarily 

terminating his parental rights to his son, L.A.G.G. (“Child”), born in 

December of 2011.1 We affirm.2

The record reveals the factual and procedural history as follows. In 

October of 2013, the Montgomery County Office of Children and Youth (“the 

Agency”) received a referral regarding this family due to concerns of 

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* Retired Senior Judge assigned to the Superior Court.

1

The orphans’ court involuntarily terminated the parental rights of W.G. 

(“Mother”) by separate decree dated August 5, 2016. Mother did not file a 

notice of appeal.

2 We observe that the guardian ad litem filed a brief in support of the decree 

involuntarily terminating Father’s parental rights.
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Mother’s mental health and Child’s development. N.T., 7/13/16, at 133. 

The Agency implemented in-home services for Mother and Child. Id. at 134. 

Child has a twenty-five percent delay in his speech, fine motor skills, 

and cognitive abilities. N.T., 7/13/16, at 15. He has an Individualized 

Education Program (“IEP”), and he receives occupational and speech 

therapy. Id. at 168-169. On October 14, 2014, Child was adjudicated 

dependent, and he was placed in a foster home. Id. at 154. 

Throughout the history of this case, Father alleged that he resided in 

the State of Delaware. Child never lived with him. Father met Child for the 

first time at a supervised visit in April of 2015, following testing that 

established his paternity in February of 2015. N.T., 7/22/16, at 48; N.T., 

7/13/16, at 170-171, 190.

On March 11, 2016, the Agency filed a petition for the involuntary

termination of Father’s parental rights pursuant to 23 Pa.C.S.A. § 

2511(a)(1), (2), (8), and (b). The orphans’ court held a hearing on July 13 

and 22, 2016. The Agency presented the testimony of Deborah L. Shanley, 

the Administrative Assistant and Director of Medical Records at Montgomery 

County Emergency Service; Lori Sheetz, the case manager service 

coordinator at the Montgomery County Intermediate Unit; and Gwen 
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Damiani, the Agency caseworker. Father testified on his own behalf, and he 

presented the testimony of his aunt, E.R.G. (“Paternal Aunt”).3

By decree dated and entered on August 5, 2016, the orphans’ court 

involuntarily terminated Father’s parental rights. Father timely filed a notice 

of appeal and a concise statement of errors complained of on appeal 

pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b). 

On appeal, Father presents the following issues for our review:

(1) Whether the [o]rphans’ [c]ourt erred when it determined the 

existence of clear and convincing evidence that Father failed to 

perform any parental duties for a period of more than 6 months 

prior to the filing of the Petition for Termination of Parental 

Rights?

(2) Whether the [o]rphans’ [c]ourt erred in terminating Father’s 

parental rights when it determined the existence of clear and 

convincing evidence that Father did not produce sufficient 

evidence of his efforts to fulfill Family Service Plan goals?

(3) Whether the [o]rphans’ [c]ourt erred when it determined the 

existence of clear and convincing evidence that the family 

member nominated by Father to serve as caregiver to [Child] 

was unable to deal with life stressors and the [C]hild’s needs 

simultaneously?

(4) Whether the [o]rphans’ [c]ourt erred when it determined the 

existence of clear and convincing evidence that Father was 

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3

In addition, the Agency presented testimony from the following witnesses 

with respect to the petition for the involuntary termination of Mother’s 

parental rights: Stephen D. Miksic, Ph.D., who performed a psychological 

evaluation of Mother, and Dr. Alan D. Sofranko, the attending physician of 

the Forensic Assertive Community Treatment Team, where Mother received 

mental health treatment. Mother did not testify, but she presented the 

testimony of Danielle Haydt, an employee at the Penn Foundation who 

provided the transportation for supervised visits between her and Child.
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unable to affirmatively assert parental efforts to establish a bond 

with [Child]?

(5) Whether the [o]rphans’ [c]ourt erred when it determined the 

existence of clear and convincing evidence of termination of 

Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(8)?

(6) Whether the [o]rphans’ [c]ourt erred when it determined the 

existence of clear and convincing evidence that the termination 

of Father’s parental rights best serves the needs and welfare of 

[Child]?

(7) Whether the [o]rphans’ [c]ourt erred when it determined the 

existence of clear and convincing evidence that the termination 

of Father’s parental rights will not irreparably harm [Child]?

Father’s Brief at 3. 

Termination of parental rights is governed by Section 2511 of the 

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated 

analysis. 

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 warrants 

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) (citations omitted). 

We need 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 
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B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we 

conclude that the certified record sustains the orphans’ court’s decision to 

terminate under Sections 2511(a)(2) and (b), which provide as follows.4

(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 

incapacity, 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 

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4 Based on this disposition, we need not consider Father’s first and fifth 

issues which involve Section 2511(a)(1) and (8). However, it is important to 

note that Section 2511(a)(8) does not provide a basis for termination of 

Father’s parental rights because Child was not removed from Father’s care at 

the time of his placement. Indeed, during his life, Child has never been in 

Father’s care. See In re C.S., 761 A.2d 1197 (Pa. Super. 2000) (en banc) 

(stating that Section 2511(a)(5) and (8) did not provide a basis for 

terminating the father’s parental rights when he was incarcerated at the 

time of the child’s removal from the mother’s care).
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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).

This Court has stated as follows. 

In order to terminate parental rights pursuant to 23 Pa.C.S.A. § 

2511(a)(2), the following three elements must be met: (1) 

repeated and continued incapacity, abuse, neglect or refusal; (2) 

such incapacity, abuse, neglect or refusal has caused the child to 

be without essential parental care, control or subsistence 

necessary for his physical or mental well-being; and (3) the 

causes of the incapacity, abuse, neglect or refusal cannot or will 

not be remedied.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation 

omitted). Further, we have stated, “[t]he grounds for termination 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 perform parental duties.” In re A.L.D., 797 A.2d 326, 

337 (Pa. Super. 2002) (citations omitted). 

With respect to Section 2511(b), this Court has stated that, 

“[i]ntangibles such as love, comfort, security, and stability are involved in 

the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d 

1284, 1287 (Pa. Super. 2005) (citation omitted). Further, the 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. (citation omitted). However, “[i]n cases where there is no 

evidence of any bond between the parent and child, it is reasonable to infer 
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that no bond exists. The extent of any bond analysis, therefore, necessarily 

depends on the circumstances of the particular case.” In re K.Z.S., 946 

A.2d 753, 762-763 (Pa. Super. 2008) (citation omitted). 

Turning to Father’s issues on appeal, he argues that the orphans’ court 

erred by concluding that Father did not produce sufficient evidence of his 

efforts to fulfill his Family Service Plan (“FSP”) goals. Father’s issue is 

without merit.

Ms. Damiani, the Agency caseworker from January of 2014, up 

through the time of the subject proceedings, testified that Father’s FSP goals 

required him to provide information regarding a supervision plan for Child, 

his schooling, and a plan for the special services he would receive as a result 

of his developmental delays. N.T., 7/13/16, at 174, 182. In addition, 

Father was required to provide proof of housing, employment, and a 

budgeting plan, as well as obtain a psychological evaluation. Id. Further, 

she testified that the Agency offered Father supervised visits with Child 

commencing on April 7, 2015. Id. at 190. 

Ms. Damiani testified as follows on direct examination:

Q. Throughout the time that you’ve had the case, what has been 

Father’s attitude about the [Agency’s] involvement? 

A. [Father] has been very resistant to just, you know, what 

things that we’ve asked, because he feels, like, it’s not 

necessary.

Q. And has he expressed that to you, has he told you that?

A. Yes, yes.
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Q. Has he told you that on more than one occasion?

A. Yes.

N.T., 7/13/16, at 173. She further testified on cross-examination that 

Father “has been very combative with me throughout the life of the case, 

constantly arguing with me when I try to work with him about things, telling 

me why it shouldn’t be that way, why he doesn’t agree with it.” Id. at 224. 

Ms. Damiani testified that, in March of 2016, the month that the 

Agency filed the involuntary termination petition, Father told her that “he 

wants [Child], but he said since he’s been out of work, he’s not progressed 

in what is required for [Child’s] care.” N.T., 7/13/16, at 194. Ms. Damiani 

testified that in the same month, March of 2016, Father sent her his 

paystubs via text message. Id. at 183. She testified that she requested 

Father to mail the paystubs to her because she was unable to view them 

clearly by text message, but Father did not comply. Id. In addition, via

text message, in approximately June of 2016, the month before the subject 

proceedings, Father provided the name of the Bush School as a resource for 

Child. Id. at 184-185. 

Ms. Damiani testified that Father did not complete a psychological 

evaluation. Further, Father did not provide her with housing or budget 

information. N.T., 7/13/16, at 184-185, 194. Moreover, she testified the 

Agency offered Father a total of 28 supervised visits with Child, commencing 
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on April 7, 2015, and Father attended twelve of them. Id. at 190. She 

testified that Father’s last visit with Child was on November 23, 2015. Id. 

In his brief on appeal, Father argues that he had difficulty attending 

the supervised visits at the Agency’s office because (1) he had to either 

borrow a car or rely on others to transport him and (2) in May of 2015, he 

obtained temporary employment where he was required to work until 5:00 

p.m. or 6:00 p.m. daily. Father’s Brief at 18. 

Based on the foregoing, we reject Father’s assertion that the court 

erred in terminating his parental rights based on his efforts to fulfill his FSP 

goals. To the contrary, the record demonstrates that Father made minimal 

efforts to comply with his FSP goals. In fact, Ms. Damiani’s testimony 

demonstrates that Father resisted complying with the requirements 

necessary for reunification with Child. To the extent that Father did not 

resist or argue with Ms. Damiani regarding his FSP goals, the evidence 

reveals that he was incapable of satisfying them.

We discern no abuse of discretion by the orphans’ court in terminating 

Father’s parental rights pursuant to Section 2511(a)(2). Ms. Damiani’s 

testimony overwhelmingly demonstrates that Father’s repeated and 

continued incapacity, neglect, or refusal to cooperate with the Agency and to 

satisfy his FSP goals has caused Child to be without essential parental care, 

control, or subsistence necessary for his physical or mental well-being. 
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Further, the causes of Father’s incapacity, neglect, or refusal cannot or will 

not to be remedied. 

Father argues in his fourth, six and seventh issues that the orphans’ 

court abused its discretion in terminating his parental rights pursuant to 

Section 2511(b) because the Agency did not present any evidence regarding 

whether a bond existed between him and Child or the foster parents and 

Child, and the effect on Child of terminating his parental rights. We 

disagree.

This Court has held that courts considering termination of parental 

rights are not required by statute or precedent to order that an expert 

perform a formal bonding evaluation. In re K.K.R.-S., 958 A.2d 529, 533 

(Pa. Super. 2008). In addition, we have explained that,

in addition to a bond examination, the trial court can 

equally emphasize the safety needs of the child, and 

should also consider the intangibles, such as the love, 

comfort, security, and stability the child might have with 

the foster parent. Additionally, this Court stated that the 

trial court should consider the importance of continuity of 

relationships and whether any existing parent-child bond 

can be severed without detrimental effects on the child.

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011). 

In this case, there is no testimonial evidence that a parent-child bond 

exists between Father and Child. Child never lived with Father. The 

orphans’ court found that Father has had “brief involvement in his child’s 

life.” Trial Court Opinion, 8/5/16, at 10. Indeed, Ms. Damiani testified that 

Father visited Child on only twelve occasions between April 7, 2015, and 
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November 23, 2015. N.T., 7/13/16, at 190. Ms. Damiani testified that Child 

will not suffer irreparable harm if Father’s parental rights are terminated. 

Id. at 196. Thus, the evidence supports termination of Father’s parental 

rights pursuant to Section 2511(b).

To the extent Father asserts that termination was improper because 

there is no record evidence of a bond between Child and his foster parents, 

we disagree. Father cites no statutory or case law providing that an agency 

must produce evidence of a parental bond between a child and his or her 

foster parents. In contrast, the Adoption Act provides, and our case law 

confirms, that a court may terminate parental rights without a pre-adoptive 

home being identified. See 23 Pa.C.S.A. § 2512(b) (“If the petitioner is an 

agency it shall not be required to aver that an adoption is presently 

contemplated nor that a person with a present intention to adopt exists.”); 

see also In re Adoption of B.J.R., 579 A.2d 906, 915 (Pa. Super. 1990) 

(stating that the fact that the record offers no indication that the agency has 

found a prospective adoptive family for minor does not serve to bar the 

involuntary termination of parental rights where such termination is 

otherwise warranted). Thus, we conclude it follows that the Agency was not 

required to aver the existence of a parental bond between Child and his 

foster parents where the evidence otherwise warranted the termination of

Father’s parental rights.
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Furthermore, in this case, Ms. Damiani testified that Child’s foster 

parents, with whom he was placed on May 12, 2016, two months before the 

subject proceedings, are a pre-adoptive resource. N.T., 7/13/16, at 166, 

214. Although Ms. Damiani did not testify that a parental bond yet exists 

between Child and his foster parents, she testified that his foster parents 

“are very warm towards him, and . . . comfort him with hugs and play with 

him and make him feel very at home.” Id. at 166. Ms. Damiani testified 

that Child’s foster mother “is actually a speech pathologist by profession, 

and she is willing to and has been working with [Child].” Id. at 169. Ms. 

Damiani testified that Child’s “speech and his vocabulary has definitely 

increased since he has been in that home.” N.T., 7/22/16, at 15. As such, 

we discern no abuse of discretion by the orphans’ court in concluding that 

terminating Father’s parental rights will serve Child’s developmental, 

physical, and emotional needs and welfare pursuant to Section 2511(b). 

Finally, Father argues that the orphans’ court erred in determining that 

Paternal Aunt, who was “nominated by Father to serve as caregiver to 

[Child,] was unable to deal with life stressors and the Child’s needs 

simultaneously.” Father’s Brief at 20. Father’s argument is meritless. 

In its opinion accompanying the subject decree, the orphans’ court 

found that Paternal Aunt credibly testified that, “she was too stressed to 

read her mail [regarding receipt of a letter from the Agency] due to the 

death of her mother.” Trial Court Opinion, 8/5/16, at 5. The court 
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concluded, “[t]he evidence presented documented [Paternal Aunt’s] inability 

to deal with life stressors and the [C]hild’s needs at the same time.” Id.

By way of background, Father recommended Paternal Aunt as a 

placement resource for Child. N.T., 7/13/16, at 181-183. Ms. Damiani 

testified that she attempted to conduct a “home study” regarding Paternal 

Aunt, but Paternal Aunt did not respond to a letter she sent in this regard. 

Id. at 231. Paternal Aunt testified that she did not recall receiving Ms. 

Damiani’s letter “because . . . I was going through losing my mother. . . .” 

N.T., 7/22/16, at 149-150.

We conclude the court’s finding regarding Paternal Aunt as a 

prospective kinship care resource is irrelevant to its conclusion that Father’s 

conduct warrants termination under Section 2511(a) and that termination 

would serve the needs and welfare of Child under Section 2511(b). Because 

the record supports the involuntary termination of Father’s parental rights, 

we affirm the decree.

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/12/2017