In the Interest of: J.D.C., Appeal of: S.C.

J. S27001/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.D.C., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: S.C., FATHER, :
: No. 3208 EDA 2014
Appellant :
Appeal from the Decree, October 10, 2014,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. CP-51-AP-0000223-2012,
CP-51-DP-0055445-2010
IN THE INTEREST OF: Y.L.C., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: S.C., FATHER, :
: No. 3214 EDA 2014
Appellant :
Appeal from the Decree, October 10, 2014,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. CP-51-AP-0000224-2012,
CP-51-DP-0055446-2010
IN THE INTEREST OF: K.M.C.C., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: S.C., FATHER, :
: No. 3215 EDA 2014
Appellant :
Appeal from the Decree, October 10, 2014,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. CP-51-AP-0000225-2012,
CP-51-DP-0055447-2010
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IN THE INTEREST OF: H.E.A.D.C., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: S.C., FATHER, :
: No. 3216 EDA 2014
Appellant :
Appeal from the Decree, October 10, 2014,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. CP-51-AP-0000226-2012,
CP-51-DP-0055448-2010
IN THE INTEREST OF: S.W.C., JR., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: S.C., FATHER, :
: No. 3217 EDA 2014
Appellant :
Appeal from the Decree, October 10, 2014,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. CP-51-AP-0000643-2012,
CP-51-DP-0055444-2010
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 11, 2015
In these consolidated cases, S.C. (“Father”) appeals the October 10,
2014 decrees that terminated his parental rights to five of his eight children
with Y.C. (“Mother”):1 H.E.A.D.C. (male), K.M.C.C. (male), Y.L.C. (female),
*
Former Justice specially assigned to the Superior Court.
1
Mother has filed a separate appeal from the termination orders, docketed
at Nos. 3354, 3355, 3356, 3357, and 3358 EDA 2014.
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J.D.C. (female), and S.W.C., Jr. (male), (collectively “the Children”), who at
the time of the termination hearing were ages four, nine, twelve, thirteen,
and fourteen, respectively, and had been in foster care for approximately
four years. Mother and Father’s three oldest children, Do.L.C. (female),
Jaz.C (female), and Du.C (male), ages 16, 17, and 18, are all under the
Department of Human Services’ (“DHS”) supervision, but are not subject to
the current termination petitions. After careful review, we affirm.
DHS became involved with the Children in May 2010 following
numerous calls to DHS’ hotline that the Children were coming to school dirty
and hungry, that the Children’s home was cluttered and disorganized, that
Do.L.C. was not attending school, and that Father had hit Y.L.C. At the
time, the Children were living with Mother; Father was not a custodial
caregiver. (Notes of testimony, 4/22/10 at 24.)
Dependency petitions were filed on May 24, 2010, and granted on
June 10, 2010. Initially, the Children remained in Mother’s custody.
However, the Children were placed in foster care in November 2010.
Father’s home was explored as a placement resource, but because Father’s
live-in girlfriend had an “indicated child abuse” report against her and Father
was unwilling to live apart from her, the Children could not be placed with
him. (Id. at 33-34.)
On November 21, 2011, as the result of sexual abuse allegations made
by Jaz.C and Sha.C, Father’s biological daughter from another mother, as
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well as physical abuse allegations by all the Children, the trial court issued a
stay away order barring Father from having contact with the Children. In
December 2011, Father was arrested for the sexual abuse allegations. DHS
filed petitions for goal change to adoption and involuntary termination of
parental rights as to the four youngest children, H.E.A.D.C., K.M.C.C.,
Y.L.C., and J.D.C. on May 24, 2012. On December 21, 2012, a petition was
filed as to S.W.C., Jr.
In July 2013, Father was convicted of indecent assault of Sha.C. for
acts beginning in 2009 when Sha.C. was eight years old. Father was
sentenced to lifetime registration as a sexually violent predator on the
Megan’s Law registry, 9 to 23 months’ incarceration, and five years’
probation.
There were nine permanency review hearings between 2010 and 2014.
Father attended only one FSP meeting shortly after the Children’s
placement. Father’s FSP objectives were to: (1) maintain employment;
(2) complete a mental health evaluation, and comply with all treatment
recommendations; (3) maintain regular visitation with the Children;
(4) locate and occupy suitable housing for the family; and (5) participate in
parenting education to learn non-violent, non-physical, non-threatening
discipline methods to resolve family conflicts. Father was found to be
non-compliant with his FSP objectives at four hearings, minimally compliant
at two hearings, and moderately compliant at one. On January 21, 2014,
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the last hearing before the termination proceedings began, the trial court
found Father had not participated in mental health counseling and parenting
classes.
Hearings were held on the termination petitions on April 22, 2014 and
October 10, 2014.2 DHS presented five witnesses: Henry Bullock, the
original DHS worker assigned to the case from April 2010 to
November 2010; Bianca Lahara, the first case manager assigned to the case
from November 2010 to January 2014; Latoya Carr-Hermitt, case manager
assigned to the case from December 2010 through the October 10, 2014
termination hearing; Ms. Griffin3 of First Home Care, current case manager;
Antoinette Bogan, First Home Care Social Worker, assigned to the case in
July 2014 to present. Father testified on his own behalf and also called a
representative from CASA as well as a CASA volunteer, both of whom
worked with S.W.C., Jr.
At the close of the October 10th hearing, Judge Tereshko terminated
Father’s parental rights to the Children in accordance with 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), and (8), and changed their permanency goals to
2
A partial termination hearing took place in 2013 before the Honorable
E. Wright. Due to time constraints, the remainder of the hearing was
continued. Before the remainder of the case could be heard, Judge Wright
recused himself on September 25, 2013, following an ex parte
communication of Mother’s former counsel to the court. The case was
reassigned to the Honorable Allen Tereshko, who ordered the termination
proceedings start again de novo.
3
Ms. Griffin’s first name was inaudible when she testified.
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adoption. Father filed timely notices of appeal along with Pa.R.A.P. 1925(b)
statements. The trial court filed a Rule 1925(a) opinion on December 10,
2014.
Father raises two issues for our consideration:
1. Did the juvenile court err by relying on facts
that were not introduced into evidence?
2. Did the juvenile court err in determining that it
was in the best interest of the child[ren] to
terminate Father’s parental rights as Father
had a bond with his children?
Father’s brief at 5.
We review the termination of parental rights in accordance with 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. Id.;
In re: R.I.S., 36 A.3d [567,] 572 [(Pa. 2011)
(plurality opinion)]. As has been often stated, an
abuse of discretion does not result merely because
the reviewing court might have reached a different
conclusion. Id. [] Instead, a decision may be
reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. Id.. . . . [E]ven where the facts could support an
opposite result, as is often the case in dependency
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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 judge[] 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 Atencio, 650 A.2d 1064, 1066 (Pa.
1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (citations
modified, some citations omitted). It is well settled that a party seeking
termination of a parent’s rights bears the burden of proving the grounds by
clear and convincing evidence, a standard that requires evidence 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.” In re T.F., 847 A.2d 738, 742 (Pa.Super. 2004) (citation omitted).
This court has explained the proper analysis for a termination petition,
as follows:
[U]nder 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
after determining that the parent’s conduct warrants
termination of his or her parental rights must the
court engage in the second part of the analysis:
[the] determination of the needs and welfare of the
child under the standard of best interests of the
child. 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 justifies termination of parental rights under
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the statute. One major aspect of the needs and
welfare analysis concerns the nature and status of
the emotional bond between parent and child.
In re Adoption of C.L.G., 956 A.2d 999, 1004 (Pa.Super. 2008)
(en banc).
In his first issue, Father argues the trial court erred when it relied on
extrajudicial facts to render its decision. Specifically, Father complains the
trial court relied on 46 statements of fact that were listed in Exhibit A that
was attached to DHS’s petition for termination of parental rights. In the trial
court’s opinion under the section “Findings of Fact,” the court referenced
these 46 statements of fact obtained from Exhibit A. According to Father,
the trial court opinion continually cites information that was not in evidence
and was only referenced in Exhibit A.
We have reviewed the record in this matter and disagree with Father’s
assertion that none of the 46 factual findings was introduced by way of
testimony nor appears in any of the DHS exhibits that were introduced at
the hearings. In fact, many of the factual findings were introduced at the
April 22, 2014 and October 10, 2014 hearings. However, even if it were
improper for the trial court to cite to Exhibit A of DHS’s petition instead of
the evidence adduced during the hearings as support for its factual findings,
the error is harmless. The trial court cites to Exhibit A only in the section of
the opinion providing the procedural history and background information.
(See trial court opinion, 12/10/14 at 2-11.) The “Legal Analysis” section of
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the trial court’s opinion sets out a thorough review of the case with citations
to the evidence presented at the termination hearings and does not cite to
Exhibit A. (Id. at 12-15.) See In re Adoption of S.P., 47 A.3d at 827
(finding no error where even though the Superior Court improperly
highlighted aspects of the record not addressed by the trial court, the
Superior Court did not base its conclusions on those facts).
We observe that Father has only raised the “extrajudicial facts” issue;
he does not challenge the sufficiency of the evidence to support the trial
court’s decision to terminate his parental rights under Section 2511(a)(1),
(2), (5), and (8). Accordingly, the arguments made in Father’s Rule 1925(b)
statement regarding the sufficiency of the evidence under Section 2511(a)
have been abandoned on appeal and are, thus, waived. See In re K.K.,
957 A.2d 298, 303 (Pa.Super. 2008) (an appellant abandons an issue by not
addressing it in the argument section of the brief), citing In re Jacobs, 936
A.2d 1156, 1167 (Pa.Super. 2007) (finding issue waived because appellant
did not address it in argument section of appellate brief).
Even if we assume Father has not waived a challenge to the sufficiency
of the evidence to support termination under Section 2511(a), we believe
the record contains enough evidence to support the termination of Father’s
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2). In order to terminate
parental rights pursuant to Section 2511(a)(2), three elements must be
met: (1) repeated and continued incapacity, abuse, neglect, or refusal;
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(2) such incapacity, abuse, neglect, or refusal caused the child to be without
essential parental care, control, or subsistence; and (3) the causes of the
incapacity, abuse, neglect, or refusal cannot or will not be remedied. In re
Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citations
omitted).
Our supreme court has explained our inquiry under Section 2511(a)(2)
as follows:
As stated above, § 2511(a)(2) provides statutory
grounds for termination of parental rights where it is
demonstrated by clear and convincing evidence that
“[t]he repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental
well-being and the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will
not be remedied by the parent.” If and only if
grounds for termination are established under
subsection (a), does a court consider “the
developmental, physical and emotional needs and
welfare of the child” under § 2511(b).
This Court has addressed incapacity sufficient
for termination under § 2511(a)(2):
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.
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In re Adoption of S.P., 47 A.3d at 827 (Pa. 2012) (citation omitted).
Instantly, Father is a convicted sex offender. Father failed to obtain a
mental health evaluation even though he was ordered to do so. Given
Father’s sexually violent predator status, such an evaluation and treatment
were critical steps needed to assess Father’s ability to safely parent, and to
assess his capacity to form and maintain relationships with the Children.
See In re B.C., 36 A.3d 601, 610 (Pa.Super. 2012) (affirming termination
where father’s mental and emotional issues, which require anger
management and sexual offender treatment, remained unaddressed at the
time of the termination hearing).
Evidence was presented that the Children were afraid of Father due to
a history of physical abuse involving his disciplinary practices. Father was
referred to the Achieving Reunification Center (“ARC”) for services to assist
him in meeting his FSP goals; such as, parenting education to learn
non-violent discipline methods. However, Father never attended.
Additionally, Father remained unemployed.
According to DHS, the agency continued to send all correspondence to
Father, but Father never reached out to take advantage of the services
offered to him. While Father was incarcerated, DHS sent him updated
information about the Children. Father made no effort to maintain any
parent-child relationship while he was incarcerated. A parent’s incarceration
does not preclude termination of parental rights if the incarcerated parent
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fails to utilize given resources and to take affirmative steps to support a
parent-child relationship. In re D.J.S., 737 A.2d 283 (Pa.Super. 1999).
Nor does incarceration toll parental responsibilities. Adoption of McCray,
331 A.2d 652, 654 (Pa. 1975).
We also observe that even though there was a no-contact order in
place while the Children were in foster care, Father made no effort to inquire
as to their well-being, nor did he take part in any FSP meeting or
permanency review hearings. See In re V.E., 611 A.2d 1267, 1273
(Pa.Super. 1992) (affirming termination under Section 2511(a)(2) where
father, incarcerated for sexually abusing his children, made no effort to
contact child welfare agency about his children).
Based on the above, the clear and convincing evidence of record
confirms the trial court’s determination that Father did not remedy the
conditions that caused the Children to come into care; and that Father has
been, and continues to be, unable to provide proper care for the Children,
warranting the involuntary termination of his parental rights pursuant to
Section 2511(a)(2).
In his final issue, Father contends the trial court erred in determining
that it was in the best interest of the Children to terminate his parental
rights. According to Father, the testimony presented showed that he did
have a relationship with the Children; the most obvious was with S.W.C., Jr.
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(Father’s brief at 21.) Additionally, Father alleges the trial court never
addressed the bond between him and the Children. (Id. at 22.)
We turn to Section 2511(b) which provides:
§ 2511. Grounds for involuntary termination
(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.
In reviewing the evidence in support of termination under
Section 2511(b), we 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, 1286-1287
(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 discern the nature and status
of the parent/child bond, with utmost attention to the effect on the child
from permanently severing that bond. See id. This court has observed that
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no bond worth preserving is formed between a child and a natural parent
where the child has been in foster care for most of the child’s life, and the
resulting bond is attenuated. See In re K.Z.S., 946 A.2d 753, 764
(Pa.Super. 2008).
In reaching its decision that there was not a strong bond between
Father and the Children, the trial court relied on the testimony of
Latoya Carr-Hermitt, who had the opportunity to see the Children in their
respective placements. She testified as follows:
Q. And as far as [H.E.A.D.C.] is concerned how
frequently do you visit [H.E.A.D.C.]?
[Ms. Carr-Hermitt]: Every month since he’s under
five.
Q. And what can you tell the Court about
which [sic] you’ve seen as far as [H.E.A.D.C.’s]
relationship with his foster parents?
A. He has a great relationship with his foster
family. He calls his foster mom, mom.
Especially his foster father. They do a lot of
building, a lot of skills, a lot of outdoor stuff.
He does call him dad. A lot of interaction, and
he says that he loves to be around them.
Q. And as far as [J.D.C.] is concerned, how
frequently do you visit her in the home of the
West’s (sic)?
A. Every three months.
Q. And during the visits you made to [J.D.C.]
(inaudible) what can you tell the Court about
what you’ve seen as far as her interactions
with her foster parents?
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A. She’s bonded to her foster mother [and] foster
father. She likes the environment that she’s
in. They do a lot of activities together. She
really enjoys being there.
Q. And as far as [Y.L.C.] is concerned, I believe
she’s placed with Mr. Frazier?
A. Miss Mack.
Q. Miss Mack, I’m sorry. How frequently have
you seen [Y.L.C.] in Miss Mack’s home?
A. About the same three months.
Q. And what can you tell the Court about what
you’ve seen as far as her interactions?
A. Miss Mack has been phenomenal for [Y.L.C.] in
terms of helping with her behavioral issues in
school, in terms of giving her consistencies, in
terms of making sure that the needs of the
child [are] met, that she has structure, and
[Y.L.C.] really loves it at Miss Mack’s home and
she wants to stay there.
Q. And has [Y.L.C.] ever expressed any interest in
adoption, if you know?
A. Yes.
Q. To you?
A. Yes.
Q. And has [J.D.C.] expressed any interest in
adoption?
A. Yes.
Q. To you?
A. Yes.
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Q. Has [S.W.C., Jr.], ever expressed any interest
in adoption to you?
A. Yes.
Q. And can you explain why it is that you believe
it would be in [S.W.C., Jr’s] best interest for
the Court to accept the goal of adoption?
A. For the majority of this case, I think
[S.W.C., Jr.] has been the outcaste [sic] to
say, he’s had the least contact with either one
of his parents even when he was at Silver
Springs. Visitation was offered. Mom never
went to see him. Father didn’t go to see him.
[He] just hasn’t had any contact with his family
and (inaudible) supportive system, but the
institution has been his family.
Q. Okay. As far as [K.M.C.C.] is concerned why
do you believe the goal of adoption would
promote [K.M.C.C.’s] interest?
A. [K.M.C.C.] is doing very well in his foster
home, he started to strive academically. He
was behind when he first came into care since
he’s been with Mr. Lalli (sic), he’s been doing
very well, he’s been open[ing] up, he’s been
talking more in therapy about things that
happened to him at JJPI. So I think that he’s
starting to develop a healthy relationship and
trust based off the environment that he’s in.
Notes of testimony, 4/22/14 at 69-71.
Additionally, Ms. Carr-Hermitt testified there was a stay away order
against Father regarding all the Children. (Id. at 82.) The basis for the
order was the Children’s fear of physical abuse by Father, as well as the
allegations of sexual abuse. (Id. at 83.) The Children also feared Father’s
disciplinary practices. (Id.) The trial court concluded “there was not a
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strong bond between Father and his children.” (Trial court opinion,
12/10/14 at 13.)
In his brief, Father singles out S.W.C., Jr., and attempts to persuade
this court that he has a connection with this child. Father also claims that by
terminating his parental rights, we are effectively making S.W.C., Jr., an
orphan because an identifiable adoption resource has not been found.
(Father’s brief at 21-22.)
We note that the Adoption Act provides that a pending adoption is not
necessary to the termination of parental rights by an agency such as DHS.
See 23 Pa.C.S.A. § 2512(b) (“If the petitioner is an agency it shall not be
required to aver that an adoption is presently contemplated nor that a
person with a present intention to adopt exists.”). The Pennsylvania
Supreme Court has observed that termination can remove the impediment
to a child’s ability to attach to a pre-adoptive family caused by a lingering
bond with a parent who has proven incapable of meeting the child’s needs
for care and stability. See In re T.S.M., 71 A.3d 251, 271 (Pa. 2013)
(finding it was in the best interest of the children to sever unhealthy bond
with Mother in order to permit them to form healthy attachments with
families who could provide permanent homes).
At the time of his placement, S.W.C., Jr., was ten years old. He was
placed in an institutional residential treatment facility. As previously stated,
Ms. Carr-Hermitt testified that neither parent visited him even though
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visitation was offered. (Notes of testimony, 4/22/14 at 71.) She referred to
him as “the outcast.” Id. Ms. Carr-Hermitt further testified that given his
lack of contact with his family, “the institution has been his family.” Id.Four years after his placement and with termination petitions filed, Father
began to visit him in 2014.
Trish Kinkle, one of Father’s witnesses and a CASA supervisor, testified
that Father brings games with him when he visits S.W.C., Jr., and they have
a good time. (Notes of testimony, 10/10/14 at 83.) However, she also
testified that she has never observed the visits. (Id. at 84.)
Father’s other witness, Patricia McKinney, a court-appointed CASA
volunteer, testified she has known S.W.C., Jr., for four years and that the
visits with Father were going well. (Id. at 86, 93.) However, she stated she
believes that termination of Father’s parental rights would be best for him
because he needs the safety and stability of a permanent home. (Id. at
92-93.)
The fact that Father now visits one of his children, plays games, and
has a good time is a far cry from fulfilling his parental role. Clearly, Father
is not providing for any of his Children’s emotional, physical, and
developmental needs. The Children look to their foster parents for love,
comfort, and security. There was no evidence that termination of Father’s
parental rights would affect them negatively. S.W.C., Jr., the only child out
of the five who is not in a pre-adoptive home, told DHS he wants Father’s
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parental rights terminated so that he could have a chance to be adopted by
a family that would “be there for him consistently and love him all the time.”
(Id. at 44.)
Based on the above, the trial court did not abuse its discretion in
terminating Father’s parental rights.
Decrees affirmed.
Stabile, J. joins the Memorandum.
Fitzgerald, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2015
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