J-S64015-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE MATTER OF THE ADOPTION OF: M.C.B. AND D.A.B. IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: J.D.B., NATURAL FATHER No. 988 WDA 2014 Appeal from the Order May 19, 2014 In the Court of Common Pleas of Erie County Orphans' Court at No(s): 68 & 68a IN Adoption 2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J. MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 17, 2014 J.D.B. (Father) appeals from the trial court’s ord er involuntarily terminating his parental rights to his twin childre n, M.B. and D.B. (Children) (born July 2011). 1 Because Father made minimal progress in acquiring the necessary skills to parent Children, despite one ye ar of assistance and county services, the court properly terminated his parental rights. Thus, we affirm. Due to the fact that both Father and Mother have b orderline mental capacities, 2 various social service agencies intervened to prov ide them inhome assistance with basic parenting skills. After months of assistance,

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1 Mother’s rights to children were terminated by sep arate order. She has not appealed that decision.

2 Cognitive testing indicated that Father had an IQ of 78, in the borderline mental retardation range.J-S64015-14

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parents made minimal progress; Children were remove d from the home in October 2012 and placed in a foster home. 3 On October 18, 2012, Parents stipulated with Erie County Office of Children and Youth (Agency) that Children would be adjudicated dependent. Parents a dmitted that Children had poor hygiene at their doctors’ appointments, th ey made no progress with program interventions and services provided to them prior to Children’s birth, Children were left in their cribs with soile d diapers and covered in feces, Father had trouble providing food for Childr en despite public assistance, gas service had been shut off to the fa mily home, Father did not supervise Children appropriately and did not have t he ability to meet the basic needs of Children. The Agency initiated serv ices to assist with parenting, budgeting, conditions in the home and th e basic needs of Children. Despite almost one year’s worth of assistance from two caseworkers, an occupational therapist, a nutritionist, a physic al therapist, and representatives from service programs, Father has n ot progressed to the point of unsupervised visits with Children. In Jan uary 2014, the goal was changed from reunification to adoption.

____________________________________________ 3 In August 2012, re-referral was made to the Family Focus program due to concerns about the twins’ lack of weight gain. How ever, despite intervention efforts, the Children were placed in foster care.J-S64015-14

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On May 16, 2014, the court held a termination hear ing during which seven witnesses (including several Agency caseworke rs, a licensed psychologist, a counselor, and Children’s foster mo ther) testified. On May 19, 2014, the trial court entered an order involunt arily terminating Father’s rights to Children pursuant to sections 2511(a)(1), (a)(2), (a)(5), and (b) of the Adoption Act. 4 This timely appeal follows. On appeal, Father presents the following issues fo r our consideration: (1) Whether the trial court erred as a matter of law an d/or abused its discretion in involuntarily terminating the Appellant’s paternal rights pursuant to § 2511(a)(1 ), (2), and (5) when the Appellant complied with all of the services and only asked for more services and time to learn to parent the children, greatly loved the chi ldren, and wanted to parent the children. (2) Whether the trial court erred as a matter of law an d/or abused its discretion in involuntarily terminating the Appellant’s paternal rights pursuant to § 2511(b) w hen the statutory requirements for termination had not been met, the Appellant was bonded to the children, loved the children, and such finding was contrary to the best interests of the children. Under 23 Pa.C.S. § 2511, the court must engage in a bifurcated process prior to terminating parental rights. In re D.A.T. , 91 A.3d 197 (Pa. Super. 2014). Initially, the focus is on the condu ct of the parent. Id. The party seeking termination must prove by clear and c onvincing evidence that the parent's conduct satisfies the statutory ground s for termination

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4 23 Pa.C.S. §§ 2101-2938.J-S64015-14

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delineated in section 2511(a). Id. See also In re adoption of S.M. , 816 A.2d 1117 (Pa. Super. 2003) (in termination matters , burden of proof is on party seeking termination to establish by clear and convincing evidence existence of grounds for doing so; court must exami ne individual circumstances of each and every case and consider a ll explanations offered by parent to determine if evidence in light of tota lity of circumstances clearly warrants termination). Only after determining that the parent's conduct w arrants termination of his or her parental rights must the court engage in the second part of the analysis: determination of the needs and welfare o f the child under the standard of best interests of the child. In re Adoption of C.L.G. , 956 A.2d 999, 1004 (Pa. Super. 2008) (en banc). Although a needs and welfare analysis is mandated by the statute, it is distinct from and not relevant to a determination of whether the parent's conduct justi fies termination of parental rights under the statute. Id. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child. Id. We review a trial court’s decision to involuntaril y terminate parental rights for an abuse of discretion or error of law. In re A.R. , 837 A.2d 560, 563 (Pa. Super. 2003). Our scope of review is limi ted to determining whether the trial court’s order is supported by com petent evidence. Id. Despite the fact that Father may have made a since re effort to take advantage of services provided to him by the agency to fulfil his parentalJ-S64015-14

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obligations, it does not mean that he is capable of meeting Children’s essential physical and emotional needs. In Adoption of B.J.R. , 579 A.2d 906 (Pa. Super. 1990), this Court stated: A parent who is incapable of performing parental du ties is equally as unfit as one who is unwilling to do so. In re Adoption of J.J. , [] 515 A.2d at 891 [Pa. 1986] [quoting In re William L. , [] 383 A.2d 1228, 1239 (1978)[.] Accordingly, proceedings to terminate the parental rights of men tally or physically impaired parents do not require the appl ication of a more stringent "beyond a reasonable doubt" burden o f proof. Id. [] 515 A.2d at 892. What is important is the demo nstrated willingness and ability of the parent to perform, at a minimal level, his or her parental duties. [] Id. at 608. Id. at 913 (emphasis added). The fact that Children “were never harmed [and] ne ver suffered any physical or sexual abuse,” Appellant’s Brief, at 12 , is not the standard by which we determine what is in their best interests. Moreover, the fact that Father may have “acted in good faith,” id. at 13, and “complied with every service offered, and took advantage of every visit” , id. , is also not the benchmark for being a fit parent. See In re J.W. , 578 A.2d 952, 959 (Pa. Super. 1990) (parenting requires "action as well as intent."). In addition, while Father, may feel that he needs further servic es or that he was never provided the proper services by the Agency, we remi nd him that the State is required to make reasonable efforts to promote family stability and preserve the family unit. In re A.L.D. , supra . Moreover, “when the goal of preserving the family unit conflicts with the reali ty of the child(ren)’s unmet irreducible essential needs, the dispositive questi on then becomes, to whatJ-S64015-14

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extent may the parent be helped to meet those needs without permitting those needs to go unmet.” In re J.W. , 578 A.2d 952, 959 (Pa. Super. 1990). A parent who cannot meet the irreducible mi nimum requirements set by the Juvenile Act within a reasonable time fo llowing state intervention may properly be considered “unfit,” and may properl y have parental rights terminated. Id. at 958. Here, a caseworker testified that Parents were pro vided more services than she had seen given to any other family in her thirteen years of employment with the Agency. N.T. Termination Hear ing, 5/16/2014, at 83- 84. Moreover, another caseworker testified that th ere were no other temporary services that could be provided to help F ather parent safely. Id. at 132. 5 The State is not required to extend services beyo nd what our legislature has deemed a reasonable time “or requir e Herculean efforts by CYS or other agencies after the goal has changed to adoption.” In the Interest of Feidler , 573 A.2d 587, 588 (Pa. Super. 1990); In the Interest of S.A.D. , 555 A.2d 123, 124-25 (Pa. Super. 1989). Moreover , an agency is not required to provide services indefinitely if a parent is either unable or unwilling to apply the instruction given. In re R.T. , 778 A.2d 670 (Pa. Super. 2001).

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5 Caseworkers testified that Parents needed constant supervision to properly parent Children. N.T. Termination Hearing, 5/16/14 , at 132.J-S64015-14

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Here, the record bears out the fact that the Agenc y provided Father with relevant and consistent services to increase h is parenting skills to the level that he could be reunited with Children. How ever, the unfortunate fact remains that, despite his compliance with all servi ces provided, Father’s progress remains minimal at best. Serious safety c oncerns for Children continue to exist in the family home and Father doe s not have the ability to meet the basic needs of Children. Under these cir cumstances, Father is “unfit” to parent Children and termination is prope r. In re J.W. , supra . Instantly, Agency caseworkers testified that Fathe r did not consistently follow through with proper feeding and nutrition fo r Children, did not remedy safety issues apparent in the family residence, and was unable to manage the home. These issues remained even after one yea r of services was provided to Parents. See In the Interest of A.L.D. , 797 A.2d 326 (Pa. Super. 2002) (if parent appears incapable of benefi ting from reasonable efforts supplied over realistic period of time, cou nty CYS has fulfilled its mandate and upon proof of satisfaction of reasonabl e good faith effort, termination petition may be granted). Accordingly, we agree that the trial court properly terminated Father’s parental rights under sections 2511(a)(1) and 2511(a)(2). 6 See 23 Pa.C.S. § 2511(a)(1) (termination of parental

____________________________________________ 6 "[W]e need only agree with [a trial court's] decis ion as to any one subsection [of 2511(a), along with 2511(b),] in ord er to affirm the termination of parental rights." In re B.L.W. , 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).J-S64015-14

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rights warranted where “[t]he parent by conduct con tinuing for a period of at least six months immediately preceding the filin g of the petition either has evidenced a settled purpose of relinquishing parent al claim to a child or has refused or failed to perform parental duties”); 23 Pa.C.S. § 2511(a)(2) (termination of parental rights warranted where “[t ]he repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, contro l or subsistence necessary for his physical or mental well-being and the condi tions and causes of the incapacity, abuse, neglect or refusal cannot or wil l not be remedied by the parent.”). Finally, with regard to the evidence necessary to support termination under section 2511(b) of the Adoption Act, we must consider whether the termination of parental rights would best serve the developmental, physical and emotional needs and welfare of the child. See In re C.M.S. , 884 A.2d 1284, 1286-87 (Pa. Super. 2005). "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." Id. at 1287 (citation omitted). The court must also d iscern the nature and status of the parent-child bond, wit h utmost attention to the effect on the child of permanently severing that bo nd. See id. The fact that Father loves Children very much, App ellant’s Brief at 14, and wants to be involved in every moment of their l ives does not necessarily mean that he is capable of meeting their needs and welfare under 2511(b). Agency Caseworker Gaylene Abbott Faye testified tha t the Children walkedJ-S64015-14

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right by Parents in the courthouse hallway, did not recognize them, and do not ask about Parents. N.T. Termination Hearing, 5 /16/14, at 137-38. Moreover, she testified that there has been no noti ceable adverse effect on the Children since visitation ceased and that there would be no negative effect if Parents’ rights were terminated. Id. at 138. A caseworker testified that Children never looked for affection or nurturi ng from Parents during
visits. Id. at 134. On the other hand, Children have developed a stron g bond with foster parents, in whose care they had been for 20 months at the time of the termination hearing; they continue to thrive in the ir care. N.T. Termination Hearing, 5/16/14, at 103, 108-109. They have devel oped a strong attachment to the foster family and crave the struc ture and routine of the foster home. Id. at 141. Despite the bond Father may feel for Chil dren, they do not have a recognized, reciprocal bond with him. Most important, however, is the fact that despite all of his effort s, the evidence demonstrates that Father is simply incapable of meeting Children ’s overall psychological and physical needs on his own. See In re D.A.T. , (Pa. Super. 2014) (termination under section 2511(b) warranted even w here children recognized Mother and may miss her to some degree, testimony indicated that Mother is unable to meet child’s emotional, ph ysical, and developmental needs on her own or provide Child with healthy, saf e environment, and had not been able to do so for almost two years prior t o termination hearing; child's main sources of love, comfort, stability an d security are fosterJ-S64015-14

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parents). Accordingly, the Agency met its burden b y clear and convincing evidence and the trial court properly terminated Fa ther’s parental rights under section 2511(b). Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/17/2014