In the Int. of L.P., Appeal of: A.P., Father

J-S28022-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INT. OF: L.P., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.P., FATHER :
:
:
:
:
: No. 314 MDA 2020
Appeal from the Order Entered January 29, 2020
In the Court of Common Pleas of Lancaster County Juvenile Division at
No(s): 2019-00451,
CP-36-DP-0000224-2017
IN RE: L.A.P., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.P., FATHER :
:
:
:
:
: No. 330 MDA 2020
Appeal from the Decree Entered January 29, 2020
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2019-00451
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 15, 2020
Appellant, A.P. (hereinafter “Father”), appeals from the decree entered
on January 29, 2020, which granted the petition filed by the Lancaster County
Children and Youth Social Service Agency (hereinafter “the Agency”) to
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terminate Father’s parental rights to his minor child, L.P. a/k/a L.A.P. (a male
born in October 2017) (hereinafter “Child”).1 We affirm.
In October 2017, Child was born premature at Reading Hospital, in Berks
County, Pennsylvania; Child was born addicted to opiates and suffering from
neonatal abstinence syndrome. See Petition for Temporary Custody,
10/13/17, at 1. As a result, on October 13, 2017, the Agency filed a petition
for temporary custody and, on October 31, 2017, the trial court adjudicated
Child dependent, pursuant to 42 Pa.C.S.A. § 6302(1). See 42 Pa.C.S.A.
§ 6302(1) (defining “dependent child” as “a child who . . . is without proper
parental care or control, subsistence, education as required by law, or other
care or control necessary for his physical, mental, or emotional health, or
morals”).
On June 4, 2019, the Agency filed a petition to terminate Mother and
Father’s parental rights to Child. As the trial court explained:
The [trial court] held a hearing on the Agency's termination
of parental rights petition on October 24, 2019. At that time,
Father, by counsel, presented [a] motion to dismiss [the
dependency and termination of parental rights actions for
lack of subject matter jurisdiction]. . . . [Father electronically
filed the motion to dismiss] the next day (October 25, 2019)
with the clerk of courts.
Trial Court Opinion, 1/24/20, at 2 (some capitalization omitted).
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1 Also on January 29, 2020, the trial court terminated the parental rights of
L.I.L. (hereinafter “Mother”) to Child. Mother did not file a notice of appeal
from this decree and she is not a party to this appeal.
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Within Father’s motion to dismiss, Father claimed that the Court of
Common Pleas of Lancaster County did not possess subject matter jurisdiction
over the dependency or the termination of parental rights action because
Mother and Father live in Berks County, Pennsylvania and Child was born in
Berks County. See Father’s Motion to Dismiss, 10/25/19, at 1-5. Father
requested that the trial court enter an order dismissing both actions for lack
of subject matter jurisdiction. Id. at 5.
The Agency opposed Father’s motion to dismiss and argued that: the
Court of Common Pleas of Lancaster County possesses subject matter
jurisdiction over the actions because the courts of common pleas have
unlimited original jurisdiction over all proceedings in this Commonwealth,
unless otherwise provided by law; Father was confusing subject matter
jurisdiction with venue; and, “[a]ny objection to venue was waived long ago
because it was not raised prior to the adjudication as required under the
Juvenile Rules of Procedure.” The Agency’s Brief in Opposition, 11/19/19, at
4-10.
Following the Agency’s brief in opposition, Father filed a reply brief and
specifically argued: “[Father’s counsel] does not recall ever bringing the issue
of venue before th[e trial] court (it would be moot to do so as venue was
waived after the adjudicatory hearing was held October 24, 2017). [Father’s
counsel is] limiting [Father’s] argument to that of jurisdiction.” Father’s Reply
Brief, 12/4/19, at 2.
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On January 24, 2020, the trial court denied Father’s motion to dismiss.
Trial Court Order, 1/24/20, at 1. After a termination of parental rights
hearing, the trial court made the following findings of fact:
1. [Child] was born on October 3, 2017. . . . [Child] was
placed in the Agency’s temporary custody by order signed
and filed on October 13, 2017.
2. [Child] was diagnosed with neonatal abstinence syndrome
at birth. [Child] was treated in the neonatal intensive care
unit following his birth and before he was discharged directly
into the Agency’s custody. [Child] continued to suffer from
difficulty with breathing and cardiac irregularities for at least
the first [three-and-a-half] months of his life.
...
10. Father was incarcerated at Berks County Prison two
weeks after [Child] was born. Father was consistently
incarcerated from that time forward.
11. Father was incarcerated at the Berks County Prison
because the Lancaster County Office of Adult Probation had
issued a warrant for Father’s arrest for non-compliance.
Father had been on the run from Lancaster County
authorities.
12. Father remained at the Berks County Prison until
November 18, 2018, at which time he was transferred to
[State Correctional Institution (“SCI”)] Phoenix. Father
remained at SCI-Phoenix until January 22, 2019, when
Father was transferred to SCI-Houtzdale.
13. Before Father’s transfer to SCI-Phoenix, Father
completed drug and alcohol programs at Berks County Prison.
The Agency accepted Father’s completion of these programs
in satisfaction of Father’s drug and alcohol objective,
rendering that objective ongoing as opposed to incomplete.
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14. At the time of the August 1, 2019[] hearing, Father was
in “parole pending” status, meaning that Father was waiting
upon final state parole board action.
15. Father was originally paroled on March 9, 2015.
16. Presently, Father’s re-computed parole violator maximum
date is March 20, 2027.
17. While incarcerated, Father completed a Core Skills
program. The objective of this program was to learn how to
think first before acting.
18. Father participated in the Read to Your Child program
[while] in prison. In this program, a parent records a video
of the parent reading a book[,] which is then sent to the
parent’s child.
19. Father sent [Child] a book and a CD with a video
recording of Father reading the book aloud. [Child] enjoy[ed]
Father’s video.
20. Father completed a violence prevention program in
prison.
21. Father has three other children, A.P.1 [(born in July
2001)], A.P.2 [(born in November 1999)], and A.P.3 [(born
in April 1996)].
22. The mother of A.P.1 is [S.P. S.P.] is also the mother of
the Mother of [Child].
23. The Agency was previously involved with one of Father’s
other children, A.P.2, in August [] 2016.
24. Father had been estranged from A.P.2 until A.P.2 was
three years old and then in 2015, A.P.2 came to the United
States to become acquainted with Father.
25. Father requested genetic testing to determine if [he
were] the biological father of A.P.2, which resulted in a court
granting sole custody to A.P.2’s mother pending the results
of the genetic testing.
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26. The report that the Agency received regarding A.P.2 was
that A.P.2 was involved in a sexual relationship with one of
A.P.2’s aunts.
27. At the time of the report, Father was in a relationship with
Mother.
28. At the time of the report, A.P.2 was in Father’s custody.
Other members of Father’s household included Mother and
an aunt, [C.T.]
29. The report stated that A.P.2 was engaged in sexual
relations with Mother.
30. Subsequently, the Agency was able to confirm with A.P.2
that A.P.2 was having sexual relations with both [C.T.] and
Mother while A.P.2 and both women were living in Father’s
household.
31. The Agency’s investigation led to the indication of both
[C.T.] and Mother as perpetrators of sexual abuse against
A.P.2.
32. A.P.2 had been under house arrest with Juvenile
Probation at the time these relationships were transpiring but
A.P.2 had cut off his ankle bracelet monitor.
33. When Father caught A.P.2 having sex with Mother, Father
turned A.P.2 into Juvenile Probation.
34. Ultimately, A.P.2 was released to the custody of his
mother[,] who resided in Trinidad and Tobago.
...
36. The first report the Agency received regarding A.P.1 was
on March 22, 2016.
37. The report stated concerns for truancy and neglect of
A.P.1 and that A.P.1’s parents, Father and [S.P.], were in and
out of jail.
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38. The Agency recently received a report regarding A.P.1,
who was with Mother when Mother was charged with retail
theft.
39. Father did not raise his son A.P.2 or his daughter A.P.1.
40. Father never lived with his daughter A.P.1.
41. Father maintains written correspondence with [Child’s]
resource mother.
42. Father claims to have a residence that he can move to
upon his release from prison.
43. As of the time of the final hearing on the Agency’s
termination of parental rights petition, Father desired that
[Child] live with [C.H.], who Father says is a cousin of his
living in Philadelphia.
...
47. Father came to Lancaster in 1998 for the purpose of
selling illegal drugs.
48. As matters stand now, Father will owe $35,521.13 in fines
and costs when Father is released from prison.
49. Father now concedes that he hurt his back at work
sometime in 2015 and was prescribed Percocet which Father
was taking while at work which affected his job performance.
50. Father’s addiction to Percocet set Father back resulting in
his latest spurt of criminal activity.
51. Father now claims that if Father’s wife [were] cheating on
him, Father would not turn to marijuana for the emotional
pain as he did in the past.
52. Father claims he knows what it takes to be a good parent,
but Father also acknowledges that he lacks parenting skills
and that the classes he took are insufficient.
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53. Father claims he is now a “new creation by the grace of
God, the lord and Savior, Jesus Christ, and has been reborn
by the blood.”
54. Father believes that [Child] will not be hurt by being
removed from [Child’s] resource family – the only family
[Child] has known – because [Child] is young.
55. Father knows that this is his last chance to try to be a
father to [Child].
56. Assuming that Father would be granted parole by the
state parole board, Father has at least another six months to
serve on an open sentence he received in Berks County.
57. As of the final hearing date, when Father is released,
Father will need to complete a mental health evaluation, a
drug and alcohol evaluation, must remain crime-free, must
compete a parenting class, must become financially stable,
must have appropriate housing for himself and [Child], and
must demonstrate ongoing commitment to [Child] in order to
complete the objectives of the applicable child’s permanency
plan. Father would also need to be assigned and work with
a personal parent trainer, remain compliant with his terms of
probation, and his housing would have to be assessed.
58. [Child’s] resource parents, with whom [Child] has lived
since he was discharged from the hospital [23] days after his
birth, are a potentially permanent resource for [Child] and
are interested in adopting him.
59. [Child] refers to the resource parents as “Mom and Dad.”
[Child] looks to the resource parents for comfort.
60. The resource parents’ home also includes two older girls
who are in foster care. [Child] is beneficially bonded to these
two girls.
...
62. As of the time of the final hearing on the Agency’s
termination of parental rights petition . . . , [Child] had been
in the Agency’s legal and physical custody consistently for
more than [24] months.
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Trial Court Opinion, 3/23/20, at 5-15 (citations and some capitalization
omitted).
The trial court concluded that the Agency proved, by clear and
convincing evidence, that Father’s parental rights to Child should be
terminated under 23 Pa.C.S.A. §2511(a)(1), (2), and (b). The trial court thus
granted the Agency’s petition to terminate Father’s parental rights to Child on
January 29, 2020. Trial Court Order, 1/29/20, at 1.2
Father filed timely notices of appeal. He raises two claims to this Court:
[1.] Whether the [trial] court erred in its order dated January
24, 2020, that denied [Father’s] motion to dismiss the
dependency action, and by extension, the termination of
parental rights regarding [Child] due to lack of subject matter
jurisdiction and/or venue[?]
[2.] Whether the Orphan’s Court erred in its decree dated
January 23, 2020, that the Lancaster County Children and
Youth Social Services Agency had met its burden in proving
that Father’s parental rights should be terminated when there
was evidence he was working on and completing his goals on
his child permanency plan throughout his incarceration and
would be released soon[?]
Father’s First Brief at 14 (some capitalization omitted); Father’s Second Brief
at 8 (some capitalization omitted).3
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2 The trial court appointed Attorney Gina M. Carnes as guardian ad litem for
Child. Attorney Carnes filed a brief in this case in which she asserts that
termination of Father’s parental rights was in the best interest of Child. Thus,
she asks this Court to affirm the trial court’s order terminating Father’s
parental rights. Brief of Appellee, Guardian Ad Litem, 5/27/20, at 20.
3 We initially filed our memorandum in this case on July 8, 2020. However,
after we filed our memorandum, Father filed an application for reargument
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and complained that our memorandum dealt exclusively with the issue Father
briefed at docket number 314 MDA 2020, regarding the subject matter
jurisdiction of the courts of common pleas. According to Father, our
memorandum mistakenly failed to address the issue he raised in a separate
and consolidated brief – concerning docket number 330 MDA 2020 – where
he claimed that the trial court erred “in deciding the Agency had met its burden
and that [Father’s] parental rights should be terminated when he was making
substantial progress.” See Father’s Application for Reconsideration, 7/15/20,
at 1-3.
We searched our appellate docket and again saw that Father filed multiple
copies of a single brief in this matter. Further, we observed that all copies of
Father’s brief simply raised the issue of subject matter jurisdiction. Therefore,
we granted panel reconsideration to apprise Father of the fact that we found
only one set of briefs and that we discovered no separate brief that dealt with
any claim that the trial court erred “in deciding the Agency had met its burden
and that [Father’s] parental rights should be terminated when he was making
substantial progress.” See id.
Father then filed another application for reargument and informed this Court
that he electronically filed both appellate briefs in one single, long document.
See Appellant’s Second Application for Reargument, 8/12/20, at 4. Thus,
Father’s “first” brief (dealing with the subject matter jurisdiction issue) was
found at pages 1-44 of the filing and Father’s “second” brief (dealing with the
sufficiency of the evidence supporting termination) was found at pages 45-94
of the document. Father claimed that, since he actually filed both briefs in
this case, we should address the claim raised in his “second” brief. Id.
We instruct Father that filing two briefs in one document violates our Rules of
Appellate Procedure in multiple ways. See, e.g., Pa.R.A.P. 2111 (specifying
the requirements for an appellant’s brief); see also Pa.R.A.P. 125 (declaring
that “[e]lectronic filing of documents shall be governed by Administrative
Orders of the Supreme Court of Pennsylvania”); In re: Electronic Filing
System in the Appellate Courts, 418 J.A. Docket, at II(A) (Pa. 2014)
(“Electronic filings may be submitted at the UJS web portal:
http://ujsportal.pacourts.us . . . , in accordance with the filing
instructions available at that site”) (emphasis added). Further, it is not
this Court’s responsibility to discover briefs that are improperly contained
within or after another brief. Thus, we are empowered to hold that Father
waived any claim contained in his “second” brief – as that “brief” violates
multiple Rules of Appellate Procedure, the brief was not separately filed, no
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First, Father claims that the trial court erred when it refused to dismiss
the dependency action for lack of subject matter jurisdiction. This claim fails.
At the outset, we note that in his appellate brief, Father argues that the
trial court erred when it failed to transfer the case to Berks County, on the
basis of improper venue. See id. at 14 and 19. This claim of error is waived,
as Father did not raise the claim in his concise statement of errors complained
of on appeal and, at the trial level, Father expressly disclaimed any objection
to venue. See Father’s Concise Statement, 2/20/20, at 1 (limiting his
challenge to that of subject matter jurisdiction); Father’s Reply Brief, 12/4/19,
at 2 (“[Father’s counsel] does not recall ever bringing the issue of venue
before th[e trial] court (it would be moot to do so as venue was waived after
the adjudicatory hearing was held October 24, 2017). [Father’s counsel is]
limiting [Father’s] argument to that of jurisdiction”). Any claim on appeal
relating to venue is thus waived. See Pa.R.A.P. 1925(b)(4)(vii); Pa.R.A.P.
302(a) (“[i]ssues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”); see also In re M.Z.T.M.W., 163 A.3d 462,
____________________________________________
separate filing fee could have been paid for this brief, and the brief is,
essentially, an appendix to Father’s “first” brief.
Nevertheless, we note that Father is proceeding on appeal in forma pauperis
– and, thus, was not required to pay filing fees for his briefs. We further note
that Father has a constitutional right to effective assistance of counsel in this
termination of parental rights proceeding, but that “claims of ineffective
assistance of counsel must be raised on direct appeal.” In re J.T., 983 A.2d
771, 774-775 (Pa. Super. 2009). Therefore, we granted Father’s second
application for panel reargument and will now address the claim contained in
Father’s “second” brief.
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465-466 (Pa. Super. 2017) (in a termination of parental rights case, holding
that the mother had waived her appellate claims because they were not
included in her concise statement of errors complained of on appeal and were
not adequately developed in her appellate brief). Therefore, our review in this
case is limited to Father’s claim that the trial court did not possess subject
matter jurisdiction over the action. See Father’s Brief at 14.
Father’s challenge to the trial court’s subject matter jurisdiction is a pure
question of law. S.K.C. v. J.L.C., 94 A.3d 402, 406 (Pa. Super. 2014). As
such, “our standard of review is de novo and our scope of review is plenary.”
Stapas v. Giant Eagle, Inc., 198 A.3d 1033, 1037 (Pa. 2018).
As our Supreme Court has explained, “[s]ubject matter jurisdiction
concerns the competency of the court to determine controversies of the
general class to which the case presented for its consideration belongs.” In
re Nomination Petition of deYoung, 903 A.2d 1164, 1168 (Pa. 2006)
(quotations and citations omitted) (emphasis in original). It is uncontested
that jurisdiction to hear and determine dependency and termination of
parental rights actions is vested in the courts of common pleas. See 42
Pa.C.S.A. § 931(a) (providing that, except where otherwise specified by
statute or rule, “the courts of common pleas shall have unlimited original
jurisdiction of all actions and proceedings”); In re N.W., 859 A.2d 501 (Pa.
Super. 2004) (discussing the fact that the courts of common pleas possess
original jurisdiction over dependency and termination of parental rights
actions).
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In this case, the dependency and termination of parental rights actions
were brought and decided in the Lancaster County Court of Common Pleas,
which was competent to determine controversies in these general classes. As
such, the Lancaster County Court of Common Pleas had subject matter
jurisdiction over these actions and Fathers’ claim on appeal thus fails.4
Next, Father claims that the evidence was insufficient to terminate his
parental rights to Child.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition
for termination of parental rights. As in dependency cases,
our standard of review requires an appellate court to accept
the findings of fact and credibility determinations of the trial
court if they are supported by the record. In re: R.J.T., 9
A.3d 1179, 1190 (Pa. 2010). If the factual findings are
supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. As has
been often stated, an abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion. Instead, a decision may be reversed for
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4 To the extent Father claims that the Lancaster County Court of Common
Pleas did not have subject matter jurisdiction over the action because the
Agency did not have standing to initiate the dependency or termination of
parental rights actions, Fathers’ claim fails. See In re Nomination Petition
of deYoung, 903 A.2d at 1168 (“[s]ubject matter jurisdiction concerns the
competency of the court to determine controversies of the general class to
which the case presented for its consideration belongs. . . . Whether a party
has standing to maintain an action is not a jurisdictional question”) (quotations
and citations omitted); In re Adoption of Z.S.H.G., 34 A.3d 1283 (Pa. Super.
2011) (applying deYoung in the context of a challenge to termination of
parental rights and adoption decrees).
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an abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.
As [the Supreme Court] discussed in R.J.T., there are clear
reasons for applying an abuse of discretion standard of
review in these cases. [The Supreme Court] observed that,
unlike trial courts, appellate courts are not equipped to make
the fact-specific determinations on a cold record, where the
trial judges are observing the parties during the relevant
hearing and often presiding over numerous other hearings
regarding the child and parents. R.J.T., 9 A.3d at 1190.
Therefore, even where the facts could support an opposite
result, as is often the case in dependency and termination
cases, an appellate court must resist the urge to second
guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the
trial judges so long as the factual findings are supported by
the record and the court’s legal conclusions are not the result
of an error of law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (some 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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). As we
have explained, “[t]he 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. (quotations and citations omitted).
“Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.” In re B.J.Z., 207 A.3d
914, 921 (Pa. Super. 2019). We have explained:
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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 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.
Id. (quotations and citations omitted).
Here, the trial court terminated Father’s parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(1) and (2). This Court may affirm the trial court’s
decision regarding the termination of parental rights with regard to any one
subsection of section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc). In this appeal, we concentrate our analysis on
Section 2511(a)(2).
In relevant part, Section 2511 declares:
§ 2511. Grounds for involuntary termination
(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
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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 described therein which are first
initiated subsequent to the giving of notice of the filing of the
petition.
23 Pa.C.S.A. § 2511.
Thus, to satisfy the requirements of Section 2511(a)(2), the moving
party must prove “(1) repeated and continued incapacity, abuse, neglect or
refusal; (2) that such incapacity, abuse, neglect or refusal caused the child to
be without essential parental care, control or subsistence; and (3) that the
causes of the incapacity, abuse, neglect or refusal cannot or will not be
remedied.” In re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citations
omitted).
“The grounds for termination are not limited to affirmative misconduct,
but concern parental incapacity that cannot be remedied.” Id. “[A] parent’s
incarceration is relevant to [a] [S]ection [2511](a)(2) analysis and, depending
on the circumstances of the case, it may be dispositive of a parent’s ability to
provide the ‘essential parental care, control, or subsistence’ that the section
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contemplates.” In re A.D., 93 A.3d 888, 897 (Pa. Super. 2014) (citation
omitted).
Further, as the Pennsylvania Supreme Court stressed:
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent, can
seldom be more difficult than when termination is based upon
parental incapacity. The legislature, however, in enacting the
1970 Adoption Act, concluded that a parent who is incapable
of performing parental duties is just as parentally unfit as one
who refuses to perform the duties.
In re Adoption of S.P., 47 A.3d at 827 (quotations and citations omitted).
We additionally note that this Court has long recognized a parent is
required to make diligent efforts towards the reasonably prompt assumption
of full parental responsibilities. In re A.L.D., 797 A.2d 326, 337 (Pa. Super.
2002). A parent’s vow to cooperate, after a long period of uncooperativeness
regarding the necessity or availability of services, may properly be rejected as
untimely or disingenuous. Id. at 340.
As the trial court explained, the Agency proved, by clear and convincing
evidence, that Father’s parental rights should be terminated under Section
2511(a)(2):
Father has been incarcerated the entire time that [Child] has
been in the care of the Agency. Father’s decisions and
actions resulted in Father’s lengthy and continuous
incarceration and have caused Father to be unavailable to
parent [Child] for virtually the entirety of [Child’s] life. While
Father has undergone some counseling and programming
during his incarceration, there is little evidence that Father is
capable of parenting [Child]. Father as much as admitted
that he is incapable as a parent despite his participation in
such programming. Father has demonstrated lack of
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capacity and a disturbing lack of interest in the past in respect
to his older children, whom he never actively parented.
Father’s engagement in a self-centered criminal lifestyle is
the hallmark of his adulthood. Historically, in the context of
his older children, Father forfeited every opportunity to
perform parental duties, and even went so far as to deny
paternity of one of his children (whom he now acknowledges)
when custody litigation in respect to that child was well
underway. In the instant case, Father and Mother dodged
Father’s identification as the biological father of [Child] for
months after [Child] was taken into the care of the Agency.
[The trial] court must consider that past behavior is often the
best predictor of future behavior. In such light, Father’s
claims that he is now a “new creation by the grace of God,
the lord and savior, Jesus Christ, and has been reborn by the
blood” are disingenuous, are not credible, and are not
persuasive.
Father’s affirmative steps in participating in programming
during Father’s incarceration are laudable, but nevertheless
are nominal. Such steps are wholly insufficient when
considered in the context of all that remains to be done
before Father could even possibly be in a position to provide
[Child] with timely permanency during [Child’s] formative
years. Father, in essence, would need to pursue from scratch
every objective contained in [Child’s] permanency plan [the
trial] court awarded him almost two years ago. In the best
possible scenario (from Father’s perspective) wherein he is
paroled by the state parole board at the first opportunity and
then he serves the approximately six months’ time remaining
on his yet to be satisfied Berks County sentence, he could not
even begin that process until [Child] is three and a half years
old. Father displayed a profound lack of understanding of
child development and lack of empathy for [Child] when he
expressed a belief that [Child] would suffer no trauma if
[Child] is removed from the only home he has ever known to
be placed in Father’s care.
Trial Court Opinion, 3/23/20, at 18-20 (citations omitted).
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We conclude that the trial court was well-within its discretion when it
concluded that Father met the conditions for termination delineated in Section
2511(a)(2). Father’s claim to the contrary fails.
This Court has stated that the focus in terminating parental rights under
section 2511(a) is on the parent, but it is on the child pursuant to section
2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.
2008) (en banc). In reviewing the evidence in support of termination under
section 2511(b), our Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of
the child.” 23 Pa.C.S. § 2511(b). The emotional needs and
welfare of the child have been properly interpreted to include
“[i]ntangibles such as love, comfort, security, and stability.”
In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re
E.M., [620 A.2d 481, 485 (Pa. 1993)], this Court held that
the determination of the child’s “needs and welfare” requires
consideration of the emotional bonds between the parent and
child. The “utmost attention” should be paid to discerning
the effect on the child of permanently severing the parental
bond. In re K.M., 53 A.3d at 791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances . . . where
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direct observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008).
A parent’s abuse and neglect are likewise a relevant part of this analysis:
concluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were
the dispositive factor in the bonding analysis, the analysis
would be reduced to an exercise in semantics as it is the rare
child who, after being subject to neglect and abuse, is able
to sift through the emotional wreckage and completely
disavow a parent . . . Nor are we of the opinion that the
biological connection between [the parent] and the children
is sufficient in of itself, or when considered in connection with
a child’s feeling toward a parent, to establish a de facto
beneficial bond exists. The psychological aspect of
parenthood is more important in terms of the development
of the child and [his or her] mental and emotional health than
the coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (citations and
quotations omitted). Thus, the court may emphasize the safety needs of the
child. See In re K.Z.S., 946 A.2d at 763 (affirming involuntary termination
of parental rights, despite existence of some bond, where placement with
mother would be contrary to child’s best interests).
Our Supreme Court has stated that the mere existence of a bond or
attachment of a child to a parent will not necessarily result in the denial of a
termination petition, and that “[e]ven the most abused of children will often
harbor some positive emotion towards the abusive parent.” See In re:
T.S.M., 71 A.3d 251, 267 (Pa. 2013) (quoting In re K.K.R.-S., 958 A.2d 529,
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535 (Pa. Super. 2008)). The Supreme Court stated, “[t]he continued
attachment to the natural parents, despite serious parental rejection through
abuse and neglect, and failure to correct parenting and behavior disorders
which are harming the children cannot be misconstrued as bonding.” See In
re: T.S.M., 71 A.3d at 267 (quoting In re Involuntary Termination of
C.W.S.M., 839 A.2d 410, 418 (Pa. Super. 2003) (Tamilia, J. dissenting)).
While Father may claim to love Child, a parent’s own feelings of love
and affection for a child, alone, will not preclude termination of parental rights.
In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). We stated in In re Z.P.,
a child’s life “simply cannot be put on hold in the hope that [a parent] will
summon the ability to handle the responsibilities of parenting.” Id. at 1125.
Rather, “a parent’s basic constitutional right to the custody and rearing of his
child is converted, upon the failure to fulfill his or her parental duties, to the
child’s right to have proper parenting and fulfillment of his or her potential in
a permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856
(Pa. Super. 2004).
Here, the trial court explained, termination of Father’s parental rights
would be in the best interests of Child:
While Father sought visitation with [Child] at the state
correctional institution where he was housed (and [the trial
court] sought and eventually ordered an appropriate
mechanism for such visitation to occur), the reality is that
Father is not known to [Child] and [Child] could not have a
bond of any sort with Father. Based upon the totality of the
circumstances, [Child] will suffer no measurable negative
consequence stemming from the termination of Father’s
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parental rights. Rather, [Child] has been in the capable
hands of his resource parents who have supplied his
emotional and physical needs and who have nursed him back
from the prenatal injuries inflicted upon him through his
biological parents’ drug-saturated lifestyle. [Child] deserves
proper parenting and the fulfillment of [Child’s] potential in a
permanent, healthy, and safe environment.
[Child] must remain in the nurturing, loving, and stable home
of his resource family. It is in [Child’s] best interest that
Father’s parental rights [be] terminated.
Trial Court Opinion, 3/23/20, at 23.
Our review of the record demonstrates that there is sufficient,
competent evidence in the record that supports the trial court’s factual and
legal determinations. Thus, we will not disturb the trial court’s decision. In
re Adoption of S.P., 47 A.3d at 826-27. Accordingly, we affirm the trial
court’s decree terminating Father’s parental rights to Child pursuant to section
2511(a)(2) and (b) of the Adoption Act.
Decrees affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2020
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