In the Int. of: D.L., Appeal of: T.L. ( 2021 )

J-S16003-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.L., FATHER :
:
:
:
:
: No. 442 EDA 2021
Appeal from the Order Entered February 3, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000610-2019
IN THE INTEREST OF: D.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.L., FATHER :
:
:
:
:
: No. 443 EDA 2021
Appeal from the Order Entered February 3, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0002658-2018
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 24, 2021
T.L. (Father) appeals from the orders entered on February 3, 2021,
involuntarily terminating his parental rights to D.L. (Child), born in December
of 2018, and changing the goal for Child from reunification to adoption. We
affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S16003-21
On appeal, Father’s brief provides the following questions for our review:
1. [W]hether the trial court committed reversible error when it
involuntarily terminated [F]ather’s parental rights, where such
determination was not supported by clear and convincing
evidence under the [A]doption [A]ct, 23 Pa.C.S.[] §
2511(a)(2).
2. [W]hether the trial court committed reversible error when it
involuntarily terminated [F]ather’s parental rights without
giving primary consideration to the effect that the termination
would have on the developmental, physical and emotional
needs of the [C]hild as required by the [A]doption [A]ct, 23
Pa.C.S.[] § 2511(b).
3. [W]hether the trial court erred in involuntarily terminat[ing]
[F]ather’s parental rights as [Father] was not given single case
plan goals to accomplish, nor was considered a viable
reunification resource from the outset due to his incarceration.
42 Pa.C.S.[] § 6351 and 23 Pa.C.S.[] § 2511(b).
Father’s brief at 8.1
We review an order terminating parental rights in accordance with the
following standard:
When 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 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 Although Father lists these three issues in his brief, he has not included a
section with discussion relating to the third issue. Furthermore, he has
omitted any argument relating to the goal change order and, therefore, we
conclude that he has waived that issue. See Pa.R.A.P. 2119(a), R.L.P. v.
R.F.M., 110 A.3d 201, 208-09 (Pa. Super. 2015) (stating that arguments not
appropriately developed are waived).
-2-
J-S16003-21
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)). The burden is upon the petitioner to prove
by clear and convincing evidence that its asserted grounds for seeking the
termination of parental rights are valid. R.N.J., 985 A.2d at 276. 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 supports 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).
We have reviewed the certified record, the briefs of the parties, the
applicable law, and the comprehensive opinion authored by the Honorable
Joseph Fernandes of the Court of Common Pleas of Philadelphia County, dated
March 25, 2021. We conclude that Judge Fernandes’ well-reasoned decision
properly disposes of the issues raised by Father. In particular, Judge
Fernandes notes that “Father has been incarcerated pre-trial for the life of the
-3-
J-S16003-21
case and has been charged with and alleged to have committed Mother’s
murder.” Trial Court Opinion, 3/25/2021, at 11. The judge also observed
that “Father has had no contact with Child and has not seen her since the day
of Mother’s death when … Child was five-days old.” Id. at 12. Furthermore,
Father has not taken any affirmative action to show interest in Child during
the twenty-six months she has been committed to the custody of the
Department of Human Services. The judge concluded that “[g]iven … Child’s
age and her lack of visits with Father, Child does not know Father.” Id.
Rather, Child has been in the care of her maternal aunt, who has met Child’s
needs. Thus, we conclude that Judge Fernandes’ opinion properly disposes of
the issues Father raises in this appeal. Accordingly, we adopt Judge
Fernandes’ opinion as our own and affirm the orders appealed from on that
basis.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2021
-4-
Circulated 06/11/2021 11:52 AM
IN THE COURT OF COMMON PLEAS
FOR THE COUNTY OF PHILADELPHIA
FAMILY COURT DIVISION
In the Interest of D.L., aMinor CP-51-DP-0002658-2018
CP-51-AP-0000610-2019
F1D: 51-FN-002305-2018
APPEAL OF: T.L., Father
443 EDA 2021
c
442 EDA 2021
OPINION'
Fernandes, J.:
Appellant T.L. ("Father") appeals from the order entered on February 3, 2021, granting the petition
filed by the Philadelphia Department of Human Services ("DHS"), to involuntarily terminate
Father's parental rights to D.L. ("Child"), pursuant to the Adoption Act, 23 Pa.C.S.A. §2511(a)(2)
and (b), and to change Child's permanency goal from reunification to adoption, pursuant to 42
Pa.C.S.A. §6351. Harry R. Levin, Esquire, counsel for Father ("Father's Counsel") filed timely
Notices of Appeal with aStatement of Matters Complained of on Appeal pursuant to Rule 1925(b)
on February 5, 2021. Father's Counsel withdrew and discontinued Father's Appeal on February
24, 2021. On March 2, 2021, Father's Counsel re-filed Notices of Appeal ("Notice") with
Statements of Matters Complained of on Appeal pursuant to Rule 1925(b) ("Statement").
Factual and Procedural Background:
DHS received aChild Protective Services ("CPS") report stating that between the hours of 4:30
A.M. and 6:00 A.M. on December 14, 2018, Father allegedly shot and killed Mother2,while she
held Child 3.At the time of Mother's death, the Child was five days old. Child's date of birth is
The trial court requested the Notes of Testimony for February 3, 2021, on February 5, 2021. The Notes of Testimony
for February 3, 2021, were uploaded on February 17, 2021.On March 8.202 I, the trial court transitioned judicial law
clerks and the new law clerk obtained access to the Notes on March 9, 2021.
'Mother's D/O/D was December 14. 2018. Mother's Death Certificate lists her cause of death as multiple gunshot
wounds and her manner of death as ahomicide.
aMother had two other children with adifferent father. These two children are not involved in this appeal.
Page Iof 13
December 9, 2018. Father was reportedly evading the police at that time. Mother and Father had a
history of domestic violence. Father has an extensive criminal history stemming as far back as
December 2008, including being found guilty of driving under the influence of a controlled
substance in March 2010. After the incident, Child was examined at St. Christopher's Hospital for
Children in Philadelphia and did not have any medical issues. On December 14, 2018, DHS filed
an Application for an Emergency Order of Protective Custody ("OPC") for Child. The OPC was
obtained and Child was placed in Maternal Aunt's care. DHS visited Maternal Aunt's home the
same day and determined Child was safe. Father surrendered himself to the Philadelphia Police
Department ("PPD") on the morning of December 17, 2018, and was arrested. Father has been
charged with the following criminal acts: murder, firearm charges, endangering the welfare of
children, and tampering with physical evidence. Father was denied bail. Father has been
continuously incarcerated at Curran-Fromhold Correctional Facility ("CFCF") awaiting trial.
On December 17, 2018, the OPC was lifted and the temporary commitment to DHS was ordered
to stand at ashelter care hearing4.A stay-away order was issued against Father and all visits were
suspended. DHS filed a Dependency Petition on December 24, 2018, asking the trial court to
adjudicate Child dependent under the Juvenile Act, 42 Pa.C.S.A. §6302 "Dependent Child" (1).
On January 29, 2019, the trial court held an adjudicatory hearing, where Child's temporary
commitment to DHS was discharged; Child was adjudicated dependent and fully committed to
DHS. The trial court determined Child would remain in kinship care with Maternal Aunt, and DHS
was ordered to refer Maternal Aunt for kinship care services. Father's Counsel was present. The
Community Umbrella Agency ("CUA") was identified as Tabor Children Services by DHS on
January 10, 2019.
The CUA held a Single Case Plan (
-'SCP") meeting on February 20, 2019. Father did not
participate in the meeting. Child's goal was reunification. Father's objective was to comply with
the stay-away order issued on December 17, 2018.
4Between December 17, 2018, and March 11. 2020. the trial court judge assigned to this matter was The Honorable
Judge Vincent W. Furlong. From September 4, 2020, to the present, the trial court judge assigned to this matter is
The Honorable Joseph Fernandes.
Page 2of 13
An initial permanency review hearing was held on April 16, 2019. Father's Counsel was present.
Child's placement remained necessary and appropriate and she was ordered to remain in kinship
care with Maternal Aunt. Father was to avail and remain in contact with CUA. Visits remained
suspended. Further permanency review hearings were held on May 21, 2019, July 30, 2019, and
October 22, 2019. Father's Counsel was present each time. Child's placement remained necessary
and appropriate and she was ordered to remain in kinship care with Maternal Aunt. CUA was to
continue to make outreach to Father. Visits remained suspended and the stay-away order in place.
The trial court also ordered that visitation with paternal relatives was not to occur until ordered by
the court
On August 14, 20I9, DHS tiled Petitions to involuntarily terminate Father's parental rights and
change Child's permanency goal from reunification to adoption. On September 4, 2020, the
termination trial was continued, but apermanency review hearing was held. Father was found
minimally compliant with his permanency plan and visits with Child continued to be suspended
due to grave threat presented by Father. Father was to be referred to the Achieving Reunification
Center ("ARC") for services and anger management should he be released from prison, The stay-
away order continued to stand.
The termination and goal change trial was held February 3, 2021. Father and Father's Counsel
were present. Father was on the telephone from the county jail. Father's Counsel indicated that
although he had explored voluntarily relinquishment of parental rights with Father, Father
declined. Father also declined to voluntarily relinquish his rights when asked on the record. (N.T.
02/03/21, pgs. 74-75). DHS requested the trial court to terminate Father's parental rights under 23
Pa.C.S.A. §2511(a)(2), (5), (8), and (b). (N.T. 02/03/21, pg. 70); however, the trial court found
clear and convincing evidence to change Child's permanency goal to adoption and to involuntarily
terminate Father's parental rights pursuant only to 23 Pa.C.S.A. §2511(a)(2) and (b). (N.T.
02/03/21, pgs. 76-78). On March 2, 2021, Father's Counsel re-filed this appeal on behalf of Father.
Father's Counsel had previously withdrawn the appeal on behalf of Father.
Page 3of 13
Discussions:
On appeal of the involuntary termination of Father's parental rights and goal change, Father asks
if the trial court committed reversable error when:
1. It involuntarily terminated Father's parental rights (and changed the goal to adoption)
where such determination was not supported by clear and convincing evidence under the
Adoption Act, 23 Pa.C.S.A. §2511(a)(2)?
2. It involuntarily terminated Father's parental rights (and changed the goal to adoption)
without giving primary consideration to the effect that the termination would have on the
developmental, physical and emotional needs of the child as required by the Adoption Act,
23 Pa.C.S.A. §2511(b)?
3. Because the evidence was overwhelming and undisputed that father demonstrated a
genuine interest and sincere, persistent, and unrelenting effort to maintain aparent-child
relationship with his child.
A party waives their right to appeal an order if notice of the appeal is not filed within 30 days after
the entry of the relevant order. Koken v Colonial Assur. Co., 885 A.2d 1078, 1101 (Pa. Commw.
2005). An issue is also waived where it is not specifically presented in the Appellant's Pa.R.A.P.
1925(b) statement. In re Cp., 901 A.2d 516, 522 (Pa. Super. 2006); See also In re J.E.D., 879
A.2d 288, 293, fn. 7(Pa. Super. 2005). Father re-filed his appeal within 30 days after the entry of
the relevant order. Father's Counsel did file two Notices and Statements under Rule 1925(b), one
under the AP-docket and one under the DP-docket. Consequently this opinion will address the
termination pursuant to 23 Pa.C.S.A. §2311(a)(2) and (b); and changing the Child's permanency
goal from reunification to adoption pursuant to 42 Pa.C.S.A. §6351. .
The grounds for involuntary termination of parental rights are enumerated in the Adoption Act at
23 Pa.C.S.A. §2511(a), which provides the following grounds for §2511(a)(2):
(a) General rule -The rights of aparent, in regard to achild, may be terminated after a
5 The testimony for this matter starts on page 41 of the Notes of Testimony dated February 3, 202 1.
Page 4of 13
petition is 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
[her] 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.
In proceedings to involuntarily terminate parental rights, the burden of proof is on the party seeking
termination, which must establish the existence of grounds for termination by clear and convincing
evidence. In re Adoption of Atenrio, 650 A.2d 1064, 1066 (Pa. 1994). The clear and convincing
standard means the evidence "is so clear, direct, weighty, and convincing as to enable the trier of
fact to come to aclear conviction, without hesitation, of the truth of the precise facts in issue."
Matter of Sylvester, 555 A.2d 1202, 1203-1204 (Pa. 1989). §2511(a)(2) focuses on the child's
present and future need for essential parental care, control, or subsistence necessary for their
physical or mental well-being. In re Adoption of M.JH., 501 A.2d 648, 654 (Pa. Super. 1985).
Even if aparent demonstrates love for their child or makes efforts to perform their duties, if a
parent's incapacity cannot be remedied, their parental rights may be terminated. Id
In instances where aparent is incarcerated, §2511 (a)(2) requires the trial court to focus on the
effects of the incarceration on the child, rather than the mere fact of aparent's incarceration. Id.
Incarceration, while not alitmus test for termination of parental rights, can be determinative of the
question of whether a parent is incapable of providing essential parental care, control, or
subsistence to their child. In re Adoption S.P., 47 A.3d 817, 830 (Pa. 2018). Incarceration does not
relieve a parent of their obligation to perform their parental duties and a parent must utilize
available resources to continue their relationship with achild. In re J.T.M., 193 A.3d 403, 409 (Pa.
Super. 2018) (citing In re Adoption ofSP., 47 A.3d at 828). See also In re B..N.M., 856 A.2d 847,
855 (Pa. Super. 2004). The cause of a parent's incarceration is also relevant to the §2511(a)
analysis, where their actions were afactor in support of achild's removal. In re. Z, P., 994 A.2d
1108 (Pa. Super. 2010) (citing In re CL.G., 956 A.2d 999, 1006 (Pa. Super. 2008) (en hanc)).
Incarceration also does not permit aparent to "wait[] for amore suitable or convenient time to
perform one's parental responsibilities while others provide" for the child's needs. In re B.,N.M.,
supra. The length of aprison sentence may also be relevant to atrial court's consideration. In re
Page 5of 13
Adoption of K.J., 936 A.2d 1128, 1134 (Pa. Super. 2007) (upholding a termination where a
mother's minimum sentence of eighteen years for would prevent rectification of the conditions of
incapacity in atimely manner). While incarceration is not alitmus test for termination, it will also
not toll aparent's duties toward their child. Further, while "sincere efforts to perform parental
duties" may preserve parental rights under §2511(a)(] ), the same efforts may be insufficient under
(a)(2). In re Z.P., supra (citing In re. Adoption oJVJH., supra). A parent does not perform their
duties by displaying merely apassive interest in achild's development. In re R N.M., 856 A.2d at
855 (Pa. Super. 2004) (citing In re C.M.S ,832 A.2d 457,462 (Pa. Super. 2003)). Nor does aparent
protect their parental rights by simply stating they wish to retain those rights. Id. Parental
obligation is apositive duty, which requires affirmative performance by aparent. Id. A parent is
not asked to perform the impossible, but aparent must act reasonably and in good faith. Id at 846.
Child was born on December 9, 2018. At the time of Mother's death, Child was five days old.
Child was found in the home where Mother was deceased on December 14, 2018. (N.T. 02/0 3/
2 1,
pg. 45-46). At this point, Maternal Aunt made herself available when the Child was taken to the
hospital. Child has been continuously in Maternal Aunt's care since that time. (N.T. 02/03/21, pgs.
45-46). Father has been incarcerated pre-trial for the life of the case and has been charged with
and alleged to have committed Mother's murder. (N.T. 02/03/21, pgs. 45, 58). Father was denied
bail on December 17, 2018. Mother's death certificate lists her cause of death as multiple gunshot
wounds and her manner of death as ahomicide. Child was in the home at the time of Mother's
death. (N.T. 02/03/21, pg. 45). As aresult ofthe bases for adjudication and the criminal allegations,
Father was ordered to stay-away' from Child and the caregiver, pursuant to the order of the
Dependency Court at the shelter care hearing and pursuant to the criminal court order. (N.T.
02/03/21, pgs. 49-50). At the shelter care hearing, the trial court found that Father presented a
grave threat to Child and visits were suspended. (N.T. 02/03/21, pg. 79). The grave threat standard
is met when evidence clearly shows aparent demonstrates severe mental or moral deficiencies
b Where ano-contact or stay-away order has been issued against aparent with respect to achild, the situation is
analogous to those encountered by parents serving long prison sentences. In re A. D., 93 A.2d 888, 896-897 (Pa.
Super. 2014) (citing In re Adopao« of&p., supra). Parental incapacity caused by no-contact orders is relevant to a
§2511 (a)(2) analysis, and if the order is issued to protect achild from further harm at the hands of the parent, then it
is dispositive. Id. Despite aparent's inability to directly provide parental care and stability to achild when
complying with ano-contact order, acourt cannot put achild's needs on hold simply because aparent must abide
with the order. Id.
Page 6of 13
constituting agrave threat to achild and is thereby unfit to associate with their child(ren). In re
C.B., 861 A.2d 287, 294 (Pa. Super. 2004) (citing In re C.J., infra). "Barring criminal acts
committed upon the child, we can think of no action in which aparent could engage posing a
graver threat to achild's welfare than killing the other parent." In re C.J., 729 A.2d 89, 96 (Pa.
Super. 1999) (citing Green v. Sneeringer, 635 A.2d 1074 (Pa. Super. 1993)). In the instant matter,
Father is alleged to have killed the Mother. (N.T. 02/03/21, pg. 45). The CUA Case Manager
testified that Father has not had any visits with Child. (N.T. 02/03/21, pgs. 55, 58, 61). Father
confirmed he has had no visits and no contact with Child since the beginning of the case, due to
the stay-away order. (N.T. 02/03/21, pgs. 65-66). Father stated the only effort he made toward
facilitating arelationship with Child was sending relatives to court hearings. (N.T. 02/03/21, pg.
66). There is no other evidence of Father's attempts to create or maintain arelationship with Child.
The CUA Case Manager testified that Father has not sent money, gifts, or anything to Child or
Child's caregiver. (N.T. 02/03/21, pgs. 55-56). Father testified that he loves his daughter, wishes
to be apart of her life, and wants to retain his parental rights. (N.T. 02/03/21, pg. 66). However, a
parent does not perform their duties by displaying merely a passive interest in a child's
development, nor do they protect their parental rights by simply stating they wish to retain them.
In re B-N. M.., suj)ra. Further, the cause of aparent's incarceration is relevant to the §2511(a)(2)
analysis, where their actions were afactor in support of achild's removal. In re. Z.F., supra. The
Child came into DHS custody due to the allegations against Father. The incident between Mother
and Father occurred while Child was in the home. The trial court only heard evidence that Child
was without parental care due to Mother's death allegedly at the Father's hands. (N.T. 02/0 3/
2 1,
pgs. 45, 58, 72). Father is also apparently unaware of any potential release date or sentence he
faces, and so cannot provide Child with care within areasonable period of time. (N.T. 02/03/21,
pgs. 67-69). According to Father's Criminal Docket (DHS Exhibit 1-- N.T. 02/03/21, pg. 55), he
faces anon-capital homicide charge under 18 Pa.C.S.A. §2502. Father could face aterm of life
imprisonment should he be convicted of first- or second-degree homicide. Under 11 Pa.C.S.A.
§1102(d), Father could face aterm of up to forty-years if convicted of third-degree homicide.
Along with a charge of homicide, Father also faces seven other charges, including child
endangerment under 18 Pa.C.S.A. §4304, which could come with a seven-year sentence as a
Page 7of 13
potential third-degree felony 7.The trial court cannot say what sentence Father may face, as the
accessible docket sheet does not indicate the degrees of offense he faces, nor has he been convicted
of any crimes in this case yet, but with alife sentence possible, Father faces the risk of never being
able to parent the Child. Based on the offenses Father faces, there is asignificantly probability that
Child will have reached adulthood by the time Father is released from prison. Even if Father is
found not guilty of all criminal charges, Father would still have to successfully complete his ARC
services, find housing, stable income, complete anger management, and engage in visits to create
abond and relationship with Child as ordered by the trial court at the permanency review hearing
of September 4, 2020. (N.T. 02/03/21, pg. 52). While Father asserts that he has an overwhelming,
genuine interest, and sincere effort to maintain arelationship with Child, the record is devoid of
evidence to support this assertion. Apart from sending family members to court hearings, Father
has made no other attempts to show interest in the development of the Child. Father has an
affirmative duty to overcome any obstacles while incarcerated. There is no reason why he cannot
write or send cards or rey nest information about the physical and emotional well-being of the Child
by consistently communicating with the CUA Case Manager. Father has not seen Child since she
was but five-days old. (N.T. 02/03/21, pgs. 55-56, 65-66). Father was aware of the CUA Case
Manager and had her contact information. (N.T. 02/03/21, pg. 47). At the time of the termination
and goal change trial on February 3, 2021, Child had been in DHS custody for over two years, at
twenty-six months. (N.T. 02/03/21, pg. 76). Father's objectives were to comply with the stay-away
order and be in communication with the CUA. Father was aware of these objectives and was
minimally compliant. (N.T. 02/03/21, pgs. 48. 59-60, 64). Father was in contact with CUA not
more than twice over the phone. (N.T. 02/0 3/
2 1, pg. 48). On one of these occasions, Father's
mother assisted with the telephone call. (N.T. 02/03/21, pg. 49). Father did complete aparenting
class and claims to have completed an anger management class, but the CUA Case Manager has
not received any verification of completion. Father has previously been found minimally
compliant. (N.T. 02/0 3/
2 1, pgs. 60-61, 64). Father has no foreseeable release date and the
conditions that brought Child into care remained with Father unable to remedy them within the
'18 Pa.C.S.A. §43o4(b)(2) increases the grade of an offense one grade if the child is under six years of age at the
time of the offense. Without the enhancement, this is amisdemeanor of the first degree, therefore, with asingle
grade increase, it becomes afelony of the third degree. However, Father's charge could be graded higher dependent
on the facts proven by the prosecutor at his trial.
Page 8of 13
next six months. Child needs permanency. Child cannot wait for Father to be released from jail
and wait for him to put himself in aposition to resume his parental responsibilities. Father is unable
to provide essential parental care, control, and subsistence necessary for Child's physical and
mental well-being at the time of the termination trial. Termination under 23 Pa.C.S.A. §2511(a)(2)
was proper. There is no error or abuse of discretion.
After a finding of any grounds for termination under Section (a), the court must, under 23
Pa.C.S.A. §2511(b), also consider what -if any -bond exists between parent and child. In re
Involuntary Termination of C. WS M. and KA.L.M., 839 A.2d 410, 415 (Pa. Super. 2003). The
trial court must examine the status of the bond to determine whether its termination "would destroy
an existing, necessary and beneficial relationship". In re Adoption of T.B.B. 835 A.2d 387, 397
(Pa. Super. 2003). In assessing the parental bond, the trial court is permitted to rely upon the
observations and evaluations of social workers. In re K.Z.S., 946 A.2d 753, 762-763 (Pa. Super.
2008). In instances where there is aparent-child bond, the Child's need for safety and security can
outweigh the protection of the parent-child bond. In re Adoption ofJ.N.M., 177 A.3d 937,946 (Pa.
Super. 2018) (citing In re MM., 106 A.3d 114, 119 (Pa. Super. 2014)). The trial court must
determine that the bond between aparent and achild cannot be in only one direction. There must
be abilateral relationship that roots from aparent's willingness to learn appropriate parenting skills
and be able to provide stability to the child. In re K.K.R. -S, 958 A.2d 529, 534 (Pa. Super. 2008).
Additionally, abond is not just apositive relationship between achild and aparent. Being aparent
means assuming responsibility so that areal bond develops, not just acasual relationship. Children
have the ability to know, love, and sometimes have an enjoyable time with aparent that have little
to do with their upbringing. In re J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003). In cases where
there is no evidence of any bond between the parent and child, it is reasonable to infer that no bond
exists. The extent of any bond analysis depends on the circumstances of the particular case. Id.However under 23 Pa.C.S.A. §2511(b), the rights of aparent shal Inot be terminated solely on the
basis of environmental factors such as inadequate housing, furnishings, income, or medical care,
if found to be beyond the control of the parent. There is no requirement that achild be placed in a
pre-adoptive home as apre-condition to the termination of aparent's rights. In re K. C.F., 928 A.2d
1046, 1053-1054 (Pa. Super. 2007). The trial court should consider the best interest of the child as
it exists presently, rather than the facts at the time of the original petition.
Page 9of 13
Father has been incarcerated pre-trial and unable to visit Child for over two years. (N.T. 02/03/21,
pgs. 65-66, 76). Father has had no contact with Child for the life of the case. (N.T. 02/03/21, pgs.
55, 58, 61, 65-66). Father was denied bail on December 17, 2018. As aresult of the bases for
adjudication and the criminal allegations, Father was ordered to stay-away from the Child,
pursuant to the order of the Dependency Court at the shelter care hearing and pursuant to acriminal
court order. (N.T. 02/03/21, pgs. 49-50). At the shelter care hearing, the Dependency Court found
agrave threat as to father, and suspended his visits with Child. (N.T. 02/03/21, pg. 79). The heinous
crime allegations against the Father demonstrate asevere mental and moral deficiency that Father
is unfit to associate with child. According to Father's Criminal Docket (DHS Exhibit 1— N.T.
02/03/21, pg. 55), he faces anon-capital homicide charge under 18 Pa.C.S.A. §2502, among other
offenses. Father has no foreseeable release date. (N.T. 02/03/
2 1, pgs. 68-69). Father has testified
that the only effort her made toward facilitating arelationship with Child was sending family
members to court hearings. (N.T. 02/03/21, pg. 66). The CUA Case Manager testified he has not
been able to form a parental bond with Child. (N.T. 02/03/21, pg. 61). Even prior to his
incarceration and Mother's alleged murder, Father had not established any parental bond with the
Child. (N.T. 02/03/21, pg. 53). Child was five days old at the time of the incident and placed with
Maternal Aunt. Except for the first five days of her life, Child has known no caregiver other than
Maternal Aunt and has been doing very well in her kinship care. (N.T. 02/03/21, pg. 59). Father is
unable to meet Child's basic needs and there is no parental or beneficial bond to preserve. (N.T.
02/03/21, pgs. 61, 66). The parental bond is with the kinship caregiver. The record reflects that
Child is in aloving environment with the kinship caregiver, Maternal Aunt. (N.T. 02/03/21, pgs.
55-56). The Maternal Aunt provides for all the basic needs of the Child. The Child is
developmentally on target. (N.T. 02/03/21, pgs. 45-47). Child does not know Father since she has
been with Maternal Aunt throughout her life, except for the first five days. (N.T. 02/03/21, pgs.
45-46). Father has made no attempt to show interest with the development of the Child. During his
incarceration, Father has not sent any gifts or any cards to the CUA Case Manager to be given to
Child. (N.T. 02/03/21, pg. 55). Terminating Father's parental rights would not cause irreparable
harm to the child. and adoption is in the best interest of the Child. (N.T. 02/03/21, pg. 56). The
testimony of the DHS witness was credible. The trial court's termination of Father's parental rights
to Child under 23 Pa.C.S.A. §2511(b) was proper and there was no error or an abuse of discretion.
Page 10 of 13
Father also asserts that the court erred in changing Child's permanency goal from reunification to
adoption. Pursuant to 42 Pa.C.S.A. §6351, when considering apetition to change adependent
child's goal, the trial court must consider, inter alia:
(1) the continuing necessity for and appropriate of the placement; (2) the extent of
compliance with the family service plan; (3) the extent of progress made towards
alleviating the circumstances which necessitated the original placement; (4) the
appropriateness and feasibility of the current placement goal of the child; (5) a
likely date by which the goal might be achieved; (6) the child's safety; and (7)
whether the child has been in placement for at least fifteen of the last twenty two
months.
In re A. B., 19 A.3d 1084, 1088-1089 (Pa. Super. 2011). In achange of goal proceeding, the child's
best interest must be the focus of the trial court's determination. The child's safety and health are
paramount considerations. In re A.H., 763 A.2d 873, 877 (Pa. Super. 2000). Pennsylvania's
Juvenile Act recognizes family preservation as one of its primary purposes. In the Interest OfR. P.
aMinor, 957 A.2d 1205, 1220 (Pa. Super. 2008). As aresult, welfare agencies must make efforts
to reunify the biological parents with their child. Nonetheless, if those efforts fail, the agency must
redirect its efforts toward placing the child in an adoptive home. Agencies are not required to
provide services indefinitely when a parent is unwilling or unable to apply the instructions
received. In re R. T., 778 A.2d 670, 681 (Pa. Super. 2001). A child's life cannot be put on hold in
the hope that parent will someday summon the ability to handle and assume the responsibilities of
being aparent. In re A.B., 19 A.3d at 1089. The trial court should consider the best interest of the
child as it exists presently, rather than the facts at the time of the original petition.
Father has been incarcerated pre-trial for the life of the case and has been charged with and alleged
to have committed Mother's murder. (N.T. 02/03/21, pgs. 45, 58). Child was in the home at the
time of'Mother's death. (1\.T. 02/03/21, pg. 45). As aresult of the bases for adjudication and the
criminal allegations, Father was ordered to stay-away from Child and the caregiver pursuant to the
order of the trial court at the shelter care hearing and pursuant to acriminal court order. (N.T.
02/03/21, pgs. 49-50). At the shelter care hearing, the trial court found that Father presented a
grave threat to Child and visits were suspended. (N.T. 02/03/21, pg. 79). Father's SCP objectives
Page 11 of 13
were to comply with the stay-away order and make outreach to CUA. (N.T. 02/03/21, pgs. 48, 59-
60, 64). Father has had no contact with Child and has not seen her since the day of Mother's death
when Child was five-days old. (N.T. 02/03/21, pgs. 55, 58, 65-66). The CUA Case Manager
testified she spoke with Father over the phone not more than twice throughout the life of the case.
(MT. 02/03/21, pg. 48). Father did not make any affirmative actions to show interest in the
development of the Child. Father has an affirmative duty to overcome any obstacles while
incarcerated. There is no reason why he cannot write or send cards or request information about
the physical and emotional well-being of the Child by consistently communicating with the CUA
Case Manager. (N.T. 02/03/21, pgs. 55-56, 65-66). Father was aware of the CUA Case Manager
and had her contact information. (N.T. 02/03/21. pg. 47). Father faces anon-capital homicide
charge under 18 Pa.C.S.A. §2502 and seven other charges, including child endangerment under 18
Pa-C.S.A. §4304, which could come with aseven-year sentence as apotential third-degree felony.
See Footnote 7. Father is currently awaiting trial in the Philadelphia county jail. Father has no
foreseeable release date. (N.T. 02/0 3/
2 1, pgs. 68-69). Even if Father is found not guilty of all
criminal charges, reunification with Father would not be immediately viable. Father would still
have to successfully complete his ARC services, find housing, stable income, complete anger
management, and engage in visits to create abond and relationship with Child as ordered by the
trial court at the permanency review hearing of September 4, 2020. (N.T. 02/03/21, pg. 52). Father
claimed that while incarcerated he has completed an anger management course and aparenting
course; however, only proof of the parenting course was provided. (N.T. 02/03/21, pgs. 60-61, 64).
Child has been in Maternal Aunt's care for the life of the case, since she was five days old, and
knows no other home. (N.T. 02/03/21, pgs. 45-46, 59). Child has not had any visits with Father.
(N.T. 02/03/21, pg. 55,58). The CUA Case Manager testified that Child is in aloving environment
with family support while in Maternal Aunt's care. (N.T. 02/03/21, pg. 56). The CUA Case
Manager further testified that Father has no parental bond with Child. (N.T. 02/03/21, pg. 61).
Father also presents agrave threat to Child, as discussed supra, due to his own actions. Given
Child's age at the time of her entry into DHS care and her lack of visits with Father, Child does
not know Father. Child has been in DHS custody for twenty-six months at the time of the
termination and goal change trial. Child needs safety and permanency, neither of which Father can
provide. Child's needs and safety are both consistently met in her current care with Maternal Aunt.
Page 12 of 13
Father was minimally compliant with his SCP objectives. There is no realistic timeline within
which Child and Father could be safely reunited, even upon his potential release from jail if found
not guilty on his criminal case. It is in the Child's best interest to be freed for adoption. The trial
court did not err or abuse its discretion when it changed Child's permanency goal from
reunification to adoption pursuant to 42 Pa.C.S.A. §6351.
Conclusion:
For the aforementioned reasons, the trial court found that DHS met its statutory burden by clear
and convincing evidence regarding termination of Father's parental rights pursuant to 23 Pa.C.S.A.
42511(a)(2), and (b); and changing Child's goal from reunification to adoption pursuant to 42
Pa.C.S.A. §6351. The trial court's termination of Father's parental rights and changing of Child's
goal was proper and should be affirmed.
By the court,
Page 13 of 13