In the Interest of: M.B. Appeal of: C.B.

• Court: Superior Court of Pennsylvania
• Decided: April 23, 2019
• Docket: 3112 EDA 2018
• Status: Unpublished

Opinion

J-S14002-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: C.B., FATHER : : : : : No. 3112 EDA 2018

Appeal from the Order Entered September 19, 2018 In the Court of Common Pleas of Monroe County Orphans' Court at No(s): 36 O.C.A. 2018, 42-DP-2017, FID: 45-FN-25-2015

*****

IN THE INTEREST OF: N.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: C.B., FATHER : : : : : No. 3113 EDA 2018

Appeal from the Order Entered September 19, 2018 In the Court of Common Pleas of Monroe County Orphans' Court at No(s): 34 O.C.A. 2018, 40 DP 2015, 45-FN-25-2015

IN THE INTEREST OF: B.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: C.B., FATHER : : : : : No. 3114 EDA 2018 J-S14002-19

Appeal from the Order Entered September 19, 2018 In the Court of Common Pleas of Monroe County Orphans' Court at No(s): 37 O.C.A. 2018, 39 DP 2015, 45-FN-25-2015

BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY LAZARUS, J.: FILED APRIL 23, 2019

C.B. (Father) appeals1 from the trial court’s orders involuntarily

terminating his parental rights to his three minor children, B.B. (born 3/2011),

____________________________________________

1In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme Court recently held:

[I]n future cases [Pa.R.A.P.] 341(a) will, in accordance with it Official Note, require that when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal.

Id. at 977 (emphasis added). Here, Father filed one notice of appeal for each Child. Each notice of appeal contains two docket numbers, one from the dependency (goal change) matter and the other from the adoption (termination) matter in each Child’s case. However, the order from which Father appeals, entered on September 19, 2018, only lists the adoption docket number for each Child (36 O.C.A. 2018; 34 O.C.A. 2018; and 37 O.C.A. 2018) and resolves only the issue regarding the termination of Father’s parental rights to Children. As part of the termination process, the order also permits the adoption of Child to proceed without Father’s consent and transfers custody of Children to CYS. Id. at 2. The order does not resolve any issues with regard to dependency. Therefore, because the orders do not resolve issues arising from anything but the lower court’s adoption dockets, i.e., issues relating to terminating parental rights, we need not quash the appeal under Walker.

* Retired Senior Judge assigned to the Superior Court.

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N.B. (born 3/2014), and M.B. (born 2/2016) (collectively, “Children”). After

careful review, we affirm.

Monroe County Children and Youth Services (CYS) first became involved

with Father’s family in April 2015 when the agency became aware that Father

was selling cocaine and heroin out of the family home. On May 1, 2015, B.B.

and N.B.2 were adjudicated dependent and placed into foster care. In early

2016, dependency was terminated and B.B. and N.B. returned to live at home

with Mother and Father;3 Father, however, was incarcerated months later on

firearms and drug charges. In April 2017, CYS received a referral that

Children’s youngest sibling, six-week old “Baby M.B.2,”4 had been hospitalized

with two skull fractures, a brain bleed, a fractured cheekbone, and a broken

nose. The court entered an emergency protective custody order for Children

and they were placed into agency custody and put back into foster care. At

that time, Paternal Grandmother (Grandmother) requested to be a placement

resource for Children, however she reported having some health concerns,

told the agency that she does not drive, and stated that she would call the

caseworkers later to determine if she wanted to be a resource. Mother was

arrested on April 30, 2017, and charged with attempted homicide, aggravated ____________________________________________

2 M.B. had not yet been born.

3 Mother is not involved in the current appeal.

4 Baby M.B.2 is not involved in the current appeal.

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assault, and endangering the welfare of a child.5 Grandmother contacted the

agency on May 1, 2017, again indicating that she wished to be a placement

resource.

In September 2017, the court suspended Mother’s and Father’s

visitation with Children and changed the goal to adoption, with a concurrent

goal of placement with a legal custodian (relative). Foster mother’s daughter

and son-in-law6 have been approved as adoptive resources for Children. On

April 23, 2018, Grandmother indicated that she did not want to be a resource

for Baby M.B.2 due to his significant medical issues; however, Grandmother

stated that she still wanted to be an adoptive resource for Children, who are

the subject of the current termination matter.

On June 4, 2018, CYS filed a petition to involuntarily terminate Father’s

parental rights to Children. On September 18, 2018, the court held a

termination hearing. Mother, Father, Grandmother, Paternal Aunt, CYS

Caseworker Melissa Daubert, attorney Brandie Belanger, and guardian ad

5 Mother was sentenced to 4-8 years’ incarceration, with a two-year probationary tail. Additionally, in September 2017, the court entered an order finding aggravating circumstances existed with regard to Mother as the perpetrator of abuse toward M.B.2.

6 Foster mother’s daughter and son-in-law regularly visit with Children at the foster home, are very involved with Children, and vacation with Children and foster parents.

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litem Barbara Fitzgerald7 testified at the proceeding. At the time of the

termination hearing, Children had been living with foster parents for 17

months.8 Caseworker Daubert testified that Mother and Father, who were

incarcerated at the time of the termination hearing, are not ready, willing or

able to take care of Children, that Children are in need of permanency, and

that it is in Children’s best interest to have Father’s parental rights terminated.

N.T. Termination Hearing, 9/18/18, at 45-46. Caseworker Daubert testified

that the only service plan objective that Father had completed was a “Read to

Your Child” program in prison. Id. at 87. Daubert also testified that B.B. told

her that Father used to hit Mother and that he remembers his parents fighting.

At the time of the termination hearing, an Interstate Custody Placement

Compact (ICPC)9 from New Jersey, Grandmother’s home state, was still ____________________________________________

7 Each child was represented by guardian ad litem, Barbara Fitzgerald, and attorney, Brandie Belanger, Esquire, at the termination hearing. See 23 Pa.C.S. § 2313(a) (children have statutory right to counsel in contested involuntary termination proceedings) and In re K.R., 2018 PA Super 334 (Pa. Super. filed Dec. 10, 2018) (en banc), but see In Re: T.S., E.S., 2018 Pa. LEXIS 4374, 2018 WL 4001825, at *10 (Pa. filed Aug. 22, 2018) (“[D]uring contested termination-of-parental-rights proceedings, where there is no conflict between a child’s legal and best interests, an attorney-guardian ad litem representing the child’s best interests can also represent the child’s legal interests.”).

8 Baby M.B.2 has been placed with a separate foster family since his release from the hospital. The family is a pre-adoptive placement for him.

9 See 62 P.S. § 761. The ICPC is an agreement among the states, the District of Columbia and the Virgin Islands to cooperate with each other in the interstate placement of children. See id. at Article I (“(a) Each child requiring placement shall receive the maximum opportunity to be placed in a suitable

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pending. Id. at 63. However, in January 2018, an initial, preliminary

evaluation and recommendation indicated that Grandmother would be a good

resource for Children. Id. at 76. Caseworker Daubert noted that that

recommendation did not include a home visit with Grandmother, an

assessment as to whether there was a bond between Grandmother and

Children, or a determination as to whether placement with Grandmother was

appropriate based upon concerns about Grandmother’s health history.

Grandmother testified that in January 2018 she was hospitalized for heart

failure due to a medication issue, id. at 97, and that in July 2018, Paternal

Aunt moved in with her to help her cook and clean. Id. at 108. Children’s

guardian ad litem testified that Grandmother had never called CYS to set up

a visit with Children or to check in on the Children, and had only attended one

placement hearing. Id. at 85.

Grandmother, on the other hand, testified that she called foster mother

to speak to Children and that foster mother would not answer her phone. Id.

at 100. Grandmother also testified that she called CYS four or five times and

was able to speak to Children on two of those occasions. Id. Grandmother

testified that she has been preparing for Children to live with her for over a

environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care.”).

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year and had attended foster parent classes.10 Id. at 103-104. At the time

of the hearing, Grandmother was not aware of Baby M.B.2’s medical condition

and the extent of his medical needs, id. at 101; when Grandmother heard

testimony about the baby’s extensive medical condition, she told the court

that she would not be able to care for him. Id. at 102. Grandmother also

testified that Children lived with her when Mother was pregnant with M.B. until

two months after M.B. was born, in April 2016. Id. at 111.

Father, who was still incarcerated at the time of the termination hearing,

testified that his minimum date of release from incarceration is August 2021,11

although he had an appeal pending. Id. at 129. He testified that while he

currently is unable to care for Children, he would like Children to be with his

mother and sister (Grandmother and Paternal Aunt) while he is incarcerated.

Id. at 120. Father testified that he loves his Children, wants to see them, and

wants his visitation rights reinstated. Id. at 135. At the time of the hearing,

Father had not seen Children in over a year. Id. Father also testified that he

called foster mother weekly to talk to Children but that she either did not have

10 Paternal Aunt also was a foster parent with custody of two of her other nieces and nephews in 2005-2006. N.T. Termination Hearing, 9/18/18, at 118.

11 In August, a caseworker met with Father in jail. Father was on the waiting list for drug and alcohol and parenting classes. Father also reported that he did not believe Mother inflicted the injuries on Baby M.B.2. Rather, he told CYS caseworkers that he believed either M.B. or B.B. inflicted the injuries on their baby brother. Father was not permitted to visit with Children at the prison at that time due to prison unit restrictions.

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her phone in her possession or she told him that the Children were in bed.

Id. at 142.

Children’s attorney testified that she met with B.B. and N.B., who

indicated that they did not want to live with Father. Id. at 144. Both children

recall Father being abusive when the family lived together. The oldest of the

Children, B.B., who was seven-and-one-half years old at the time of the

meeting, did not remember Grandmother. Attorney Belanger concluded that

there was no bond between Grandmother and Children. Id. at 145-46.

Following the hearing, the court entered an order involuntarily

terminating Father’s parental rights to Children pursuant to sections

2511(a)(1), (2), (8), and (b) of the Adoption Act.12 Father filed a timely notice

of appeal and concurrent Pa.R.A.P. 1925(a)(2)(i) concise statement of errors

complained of on appeal. He raises one issue for our consideration:

Whether the [l]ower [c]ourt erred by terminating Father’s [p]arental [r]ights . . . where Monroe County Children and Youth Services failed to make reasonable efforts towards reunification with [P]aternal [G]randmother despite Father’s clear and settled purpose to have his mother/family care for his children, and despite a lack of clear convincing evidence that termination best served the children’s needs and welfare?

Appellant’s Brief, at 14.

In a proceeding to terminate parental rights involuntarily, the burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so. The standard of clear and convincing evidence is defined ____________________________________________

12 23 Pa.C.S. §§ 2101-2910.

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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.” It is well established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination.

In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation

omitted). See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party

seeking termination of parental rights bears burden of proving by clear and

convincing evidence that at least one of eight grounds for termination under

23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs

and welfare of child set forth in 23 Pa.C.S. § 2511(b)). Moreover, the fact

that a parent is incarcerated neither compels nor precludes termination.

Rather, it is a factor, and indeed can be a determinative factor, in a court’s

conclusion that grounds for termination exist under section 2511(a)(2), where

the repeated and continued incapacity of a parent due to incarceration has

caused the child to be without essential parental care, control or subsistence

and that the causes of the incapacity cannot or will not be remedied. See In

re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012).

After a comprehensive review of the certified record, the parties’ briefs

on appeal, and relevant case law, we have concluded that the trial court

adequately disposes of Father’s issue on appeal. We, therefore, rely upon the

well-written opinion, authored by the Honorable Jonathan Mark, to affirm the

order involuntarily terminating Father’s parental rights to Children pursuant

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to 23 Pa.C.S. §§ 2511(a)(2) and (b). See Trial Court Opinion, 12/4/18, at

22-28 (termination proper where court found: Father has been incarcerated

since Children were adjudicated dependent and placed in CYS’ care in April

2017; Father not eligible for parole until at least August 2021; Father had not

seen Children in over one year at the time of termination hearing; Father has

not used available resources and taken affirmative steps to support parent-

child relationship while incarcerated; Father has failed to perform parental

duties for almost two years and lacked capacity to parent Children prior to

incarceration; Father has only made handful of calls to talk to Children and

has written single card to each Child; Father has never promoted Children’s

mental, physical, spiritual or emotional well-being; Father was selling drugs

out of family home during brief time he lived with B.B. and N.B.; Children do

not want to live with Father; little to no bond exists between Father and

Children; any apparent bond between Father and oldest Child, B.B., is not

healthy; Children are bonded with foster family; foster mother’s daughter and

son-in-law are adoptive resource for Children; termination of Father’s parental

rights would be in Children’s best interests; CYS need not make reasonable

efforts to reunify Children with grandparent under 23 Pa.C.S. §§ 2511(a)(2)

and (8); Grandmother had not yet been approved as kinship resource at time

of hearing; and no evidence of bond between Grandmother and Children).

Thus, we conclude, based on competent evidence in the record, the trial

court’s decision to involuntarily terminate Father’s parental rights was neither

an abuse of discretion nor an error of law. In re A.R., supra. We direct the

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parties to attach a copy of Judge Mark’s opinion in the event of further

proceedings in the matter.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/23/19

- 11 - Circulated 04/01/2019 12: 9 PM

COURT OF COMMON PLEAS OF MONROE COUNTY FORTY-THIRD JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA JUVENILE COURT DIVISION

N THE INTEREST OF

.B., a minor 34 OCA 2018 42 DP 2017 Appeal No. 3112 EDA 2018

IN THE INTEREST OF

N.B., a minor 38 OCA 2018 '

40 DP 2015 Appeal No. 3113 EDA 2018 IN THE INTEREST OF

B.B., a minor 37 OCA 2018 39 DP 2015 Appeal No. 3114 EDA 2018

OPINION PURSUANT TO Pa..R.A.P. 1925(a)

C.B. ("Father) -has -appealed -our -September 19, 2018 decrees that terminated

his parental rights to his children, B.B., age seven, N.B., age four, and M.B., age two

(collectively the "Children").1 Father has complied with the Children's Fast Track rules

by- filing a Rule 1925(b) statement with his notices of appeal. We now issue this

opinion pursuant to Pa.R.A.P. 1925(a).

Background

The challenged decrees were issued after a consolidated hearing convened on

September 18, 2018 on the petitions of Monroe County Children and Youth Services

("CYS" or the "Agency") for termination of Fathers parental rights ("TPR") as to all

three of the Children. From the evidence presented at hearing and the records and

I The parental rights of Children's mother were also terminated. Mother did not appeal the termination decrees.

3. files of this Court in the dependency and other proceedings involving family members,

the facts may be summarized as follows:

The family first came to the attention of Monroe County Children and Youth

Services ("CYS" or the "Agency') in April 2015 when Father was caught selling heroin

and cocaine out of their home. The ensuing investigation revealed that the Children's

mother ('Mother") was aware of Father's activities. As a result:

On April 23, 2015, emergency protective custody of B.B. and N.B., the two

Children who had been born as of that time, was taken. On May 1, 2015, B.B. and

N.B. were adjudicated dependent. Both were placed in foster care. Neither parent

appealed the dependency adjudications.

B.B. and N.B. remained dependent and in care until June 30, 2016, at which

time dependency was terminated and legal and physical custody of both of the

Children was returned to Father and Mother. In February of 2016, during the time that

B.B. and N.B. were dependent, M.B. was born.

Also as a direct result of Fathers drug trafficking activities, Father, who has a

an extensive prior criminal record including a conviction for aggravated assault and

prior drug crimes, was arrested and charged in two separate cases with drug

trafficking and firearms offenses. Father was incarcerated when B.B. and N.B. were

adjudicated dependent. He was released on bail on July 1, 2015. In October of 2015,

Father pled guilty in both cases. However, his sentencing hearing was continued

several times. As a result, Father was free on bail when M.B. was born and at the time

B.B. and N.B.'s dependencies were terminated.

On October 11, 2016, Father was sentenced tt 5 10 years' incarceration in a

2 for the RRRI program due to state correctional facility. Father was deemed ineligible for parole until, at the earliest, his prior aggravated assault conviction. He is not eligible

August of 2021. was born.2 Due to Father's On March 3, 2017, Father's youngest child, M.B.2.,

incarceration, M.B. 2 has never been in Father's care.

The family returned to the attention of CYS in April of 2017 when M.B.2 was

fractures and a brain bleed, from hospitalized with serious injuries, including two skull have to live with throughout the which he continues to suffer today and will likely the oldest child, far causing the remainder of his life. At first, Mother blamed B.B., actually Mother who harmed injuries. However, investigation revealed that it was

M.B.2. with Attempted Homicide, As a result, Mother was arrested and charged

M.B.2. Mother has been incarcerated Aggravated Assault, and related charges against to Aggravated Assault and was ever since. Mother ultimately pled nolo contendere

sentenced t 4 to S years' incarceration, followed by two years of probation

to suffer, and because Also as a result of the injuries Mother caused M.B.2 had acted inappropriately as additional referrals and investigation revealed that Mother

to all of her children, emergency protective custody of the Children and M.B.2 was

care ever since. taken. The Children have been continuously in custody was continued. On After a shelter care hearing, emergency protective we will use the designation "M.B.2" to identify and refer to Since there are two Children with the initials "M.B.," also sought termination of the parental rights of both 2 Father the youngest child. In the instant proceedings, CYS as to M.B.2. Similarly, neither parent appealed the and Mother as to M.B.2. Neither parent contested termination decree that terminated their parental rights to M.B2. did not contest the terminations and did not appeal 3 Her plea and sentence are no doubt the reasons why Mother the termination decrees.

3 May 15, 2017, the Children and M.B.2 were adjudicated dependent - the second

dependency adjudication for B.B. and N.B. Father did not challenge or appeal the

dependency adjudications. The Children and M.B.2 have been dependent since that

time.

Since the adjudications, regular permanency and placement review hearings

have been held in the Children's dependency proceedings. After each hearing, the

dependencies have been continued.

In addition, early in the fall of 2017, GYS sought a finding of Aggravated

Circumstances against Mother as well as suspension of visitation for both parents. On

September 27, 2017, Aggravated Circumstances were found as to Mother and the

Agency was relieved of the bligation to provide reunification services as to her. After

additional hearings, we issued an order suspending visitation as to both parents.

Further, the goal f the Children's dependency cases was changed t Adoption.

Father did not appeal the suspension of visitation or the goal change_

In April f 2018, CYS sent Father a letter notifying him that the Agency would

be filing for termination of parental rights. Father did not specifically respond.

On July 27, 2018, CYS filed the instant TPR petitions. The Agency als filed

petitions in the underlying dependency proceedings asking this Court to conduct

simultaneous permanency review hearings.

At that point, the Children had been in the care of persons other than their

parents for 15 months. Further, Father had been incarcerated for 21 months.

In this regard, this case is marked by Father's criminal behaviors and resulting

incarceration. Father was incarcerated for two months in 2015 while B.B. and N.B.

4 of his were dependent. M.B. was born after pled guilty and was awaiting imposition

current sentence. M.B.2 was born while Father was in prison. The Children are

long state currently in care in part because Father had been incarcerated on a

sentence at the time Mother injured M.B.2, as a result of which no parent was

during B.B. available to care for them. In all, Father was incarcerated for two months

and N.B.'s initial dependency proceedings and for a total of 23 months leading up to

of the termination hearing. He is not eligible for parole until, at the earliest, August

2021, and does not max out on his sentence until August of 2026. with him Father is serving his sentence at SCI Camp Hill. CYS has had contact and alcohol as well there. Father indicated that he was on the waiting list to take drug restrictions of the as parenting classes. He requested visits; however, due to the

housing unit that he was placed in, as a result of his history and his behaviors, Father

was initially unable to receive visits. As indicated, visits were later suspended, a

determination that Father did not contest. year. While the Father acknowledged that he hasn't seen the Children in over a

lack of physical visitation suspension of visitation provides an explanation for the

during most of that time, it does not explain why Father has had minimal contact with

he has not otherwise the Children by phone calls, letters, cards, or other means or why

used available means to remain in communication with them. He has no specific At hearing, Father testified about his post release plans.

is able and permitted to do so home plan other than to come back to this area when he

and to cash -in on a purported promise from a former employer. Father has no support

system here, save for a nineteen year old daughter.

5 From his testimony, the position advanced by his attorney, and his assignments

of error, it appears that Father feels the Children should be placed with his mother

("Paternal Grandmother"), as a sort of place holder for them, until he is released.

However, the record demonstrates that Paternal Grandmother, who lives in New

Jersey, is not currently a suitable or available resource.

Soon after the Children came into care, Paternal Grandmother, with whom the

family had previously lived, expressed her willingness to be a resource for the

Children. However, citing health and transprtation issues, she then equivocated.

Several weeks later, she re -stated her desire to be a resource for all of the Children.

Accordingly, CYS initiated an Interstate Compact on the Placement of Children

("ICPC") request with New Jersey. At the termination hearing, Paternal Grandmother

testified that she would like to be a resource for all, of the Children except for M.B.2,

whose medical needs she did not believe she could handle.

However, the ICPC process has not been completed. Thus, Paternal

Grandmther cannot at this time be a resource. In this regard, although New Jersey

has not yet made a formal determination, CYS has cncerns about Paternal

Grandmother's health and medical issues and their impact on her ability to care for the

Children.

Further, CYS has attempted to arrange visits between Paternal Grandmother

and the Children. However, the attempts were unsuccessful and Paternal

Grandmother has not seen the Children since they came into care.

Along similar lines, Paternal Grandmother has only spoken to the Children by

phone twice since they came into care.

6 Finally, there was little evidence of a bond between the Children and Paternal

Grandmother.

On the ther hand, there was evidence that the Children are bonded with their

foster family. In this regard, the Children had been in the same foster home the entire

time they had been in care. The Children are bonded with their foster mother and,

significantly, have also bonded with their foster mother's biological daughter and her

husband. This familial relationship between the Children and their foster mother's

daughter formed through the daughters' extensive involvement in the Children's lives,

which includes visiting regularly, assisting in the everyday care of the Children,

participating with the Children in family functions, and taking vacations together. As a

result of this relationship, the foster mothers daughter and her husband desire to

adopt the Children. Necessary approvals for the adoption have been obtained.

iscussion The law that we applied in terminating Father's parental rights is well settled. In

comprehensive summary:

In termination cases, the burden is upon the petitioner, in this case CYS, to

prove by clear and convincing evidence that its asserted grounds for seeking the

termination of parental rights are valid. In re T.O., 949 A.2d 910 (Pa. Super. 2008).

Clear and convincing evidence has been 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 hesitation, of the truth of the precise facts in issue." In re K.Z.S., 946 A.2d

753, 757 (Pa. Super. 2008) (citation omitted). It is well established that a court must

7 examine the individual circumstances of each and every case and consider ail of explanations offered by the parent to determine if the evidence in light of the totality 837 A.2d 1247, the circumstances clearly warrants termination. In re J.L.C. & J.R. C.,

1251 (Pa. Super. 2003). Act, Termination of parental rights is controlled by Section 2511 of the Adoption and 23 Pa. C.S.A. Section 2511. In this case, CYS sought termination of Mother

Father's parental rights on the following grounds:

Section 2511. Grounds for Involuntary Termination

(a) - General Rule. The rights of a parent in regard t a child

may be terminated after a petition filed any of the following grounds:

(1) The parents have, for a period of more than six (6) months prior to the filing of this petition, failed to, perform their parental duties;

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parents has caused the child to be without essential parental care, control or subsistence necessary for his physical and mental well-being and the conditions and causes of the inability, abuse, neglect or refusal have not been remedied by the parents;

* * *

(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.

(b) - Other considerations The court in terminating the rights of a parent shall give primary consideration of the 8 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. Section 2511(a)(1), (2), (8), and (b). Satisfaction of any subsection of

Section 2511(a), along with consideration of Section 2511(b), is sufficient far

involuntary termination of parental rights. In re K.z.a, supra; In re R.J.S.. 901 A.2d

502 (Pa. Super. 2006). Accordingly, an appellate court "need only agree with the

orphan's court as to any one subsection of Section 2511(a), as well as Section

2511(b), in' order to affirm." In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc), app. den, 863 A.2d 1141 (Pa. 2004). See also In re Adoption of C.J.P., 114

A.3d 1046 (Pa. Super. 2015); In re K.H.B., 107 A.3d 175 (Pa. Super. 2014).

Section 2511 requires a bifurcated analysis.

Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.

9 In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). See also In re

Adoption of C.J.P., supra; In re T.D., supra; In re Adoption of R.J.S., supra.

In analyzing the conduct f a parent, the applicable statutory language must be

considered. As the third sentence of Section 2511(b) directs, when subsections (a)(1)

or (8) of Section 2511(a) are cited as the grounds for termination, we may not consider

actions of a parent to remedy the conditions that necessitated the dependent child's

placement which are initiated after the parent receives notice of the filing of the

termination petition. In re Adoption of C.J.P., supra; In re K.Z.S., supra; In re D.W.,

856 A.2d 1231 (Pa. Super. 2004).

Under Section 2511(a)(1), parental rights may be terminated if, for a period of at

least six months, a parent either demonstrates a settled purpose of relinquishing

parental claims to a child or fails to peiform parental duties. In re Adoption of R.J.S.,

supra; In re Adoption of J.M.M., 782 A.2d 1024 (Pa. Super. 2001). As the Superior

Court has explained:

A court may terminate parental rights under Section 2511(a)(1) where the parent demonstrates a settled purpose to relinquish parental claim to a child or fails to perform parental duties for at least the six months prior to the filing of the termination petition. Although it is the six months immediately preceding the filing of the petition that is most critical to the analysis, the court must consider the whole history of a given case and not mechanically apply the six-month statutory provision.

In re K.Z.S., supra at 758 (Pa. Super. 2008) (case citations and quotation marks

omitted). See also In re Z.P., 994 A.2d 1108 (Pa. Super. 2010).

The grounds for termination of parental rights under Section 2511(a)(2), due to

parental incapacity that cannot be remedied, are not limited to affirmative misconduct.

10 Rather, those grounds may include acts f refusal as well as incapacity to perform

parental duties.

Parental rights may be terminated pursuant to Section 2511(a)(2) if three conditions are met: (1) repeated and continued incapacity, abuse, neglect or refusal must be shown; (2) such incapacity, abuse, neglect r refusal must be shown to have caused the child to be without essential parental care, control or subsistence; and (3) it must be shown that the causes of the incapacity, abuse, neglect or refusal cannot or will nt be remedied_ Unlike subsection (a)(1), subsection (a)(2) does not emphasize a parent's refusal or failure to perform parental duties, but instead emphasizes the child's present and future need for essential parental care, contrl or subsistence necessary for his physical or mental wellbeing_ 23 Pa.C.S.A. § 2511(a)(2). Therefore, the language in subsection (a)(2) should not be read to compel courts t ignore a child's need for a stable home and strong, continuous parental ties, which the policy of restraint in state intervention is intended t protect. This is particularly so where disruption of the family has already occurred and there is no reasonable prospect for reuniting it... _

Further, grounds for termination under subsection (a)(2) are not limited to affirmative misconduct; those grounds may include acts of incapacity to perform parental duties.

In re EA.P., 944 A.2d 79, 82 (Pa. Super. 2008) (case citations and internal quotation

marks omitted) (emphasis in original). See in re Adoption of R.J.S., supra. Thus,

While sincere efforts to perform parental duties can preserve parental rights under subsection (a)(1), those same efforts may be insufficient to remedy parental incapacity under subsection (a)(2). Parents are required to make diligent efforts toward the reasonably prompt assumption of full parental responsibilities. 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.

In re Z.P., 994 A.2d at 1117-1B (case citations and internal quotation marks omitted).

Moreover, a court may terminate parental rights under subsection (a)(2), even where

the parent has never had physical custody of the child. In re Adoption of Michael J.C.,

485 A.2d 371, 375 (Pa. 19B4); In re IP, supra. T terminate parental rights under Section 2511 (a)(8), the party seeking

termination of parental rights need only show "(1) that the child has been removed

from the care f the parent for at least twelve months; (2) that the conditions which led

t the removal or the placement of the child still exist; and (3) that termination of

parental rights would best serve the needs and welfare of the child." In re Adoption of

R.J.S., supra at 511. See In re Adoption of M.E.P., 825 A.2d 1266 (Pa. Super. 2003).

The ne year time period is significant. As the Superior Court has explained:

Section 2511(a)(B) sets a twelve-month time frame for a parent to remedy the conditions that led to the children's removal by the court. Once the twelve-month period has been established, the court must next determine whether the conditions that led to the child's removal continue to exist, despite the reasonable good faith efforts of HS supplied over a realistic period. The relevant inquiry in this

been remedied and thus whether reunification f regard is whether the conditions that led to removal have parent and child is imminent at the time of the hearing. This Court has acknowledged:

[T]he application of Section (a)(B) may seem harsh when the parent has begun to make progress toward resolving the problems that had led to removal of her children. By allowing for termination when the conditions that led to removal continue to exist after a year, the statute

12 implicitly recognizes that a child's life cannot be held in abeyance while the parent is unable to perform the actions necessary to assume parenting responsibilities. This Court cannot and will not subordinate indefinitely a child's need for permanence and stability to a parent's claims of progress and hope for the future.

In re LE.P., 87 A.2d 340, 345-46 (Pa. Super. 2014) (case citations and internal

quotation marks omitted).

With respect to the 'needs and welfare" analysis pertinent to subsections

2511(a)(8), and (b), the Superior Court has observed:

[']nitially, the focus in terminating parental rights is on the parent, under Section 2511(a), whereas the focus in Section 2511(b) is an the child. However, Section 2511(a)(8) explicitly requires an evaluation of the 'needs and welfare of the child' prior to proceeding to Section 2511(b),- which focuses on the 'developmental, physical and emotional needs and welfare of the child.' Thus, the analysis under Section 2511(a)(8) accounts for the needs of the child in addition to the behavior of the parent. Moreover, only if a court determines that the parent's conduct warrants termination of his or her parental rights, pursuant to Section 2511(a), does a 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. Accordingly, while both Section 2511(a)(8) and Section 2511(b) direct us to evaluate the 'needs and welfare of the child,' we are required to resolve the analysis relative to Section 2511(a)(8), prior to addressing the 'needs and welfare' of [the child}, as proscribed by Section 2511(b); as such, they are distinct in that we must address Section 2511(a) before reaching Section 2511(b).

In re Adoption of C.L.G., 956 A.2d 999, 1008-1009 (Pa. Super. 2008) (en Banc}

(citations omitted). See also In re LE.P., supra; In re Adoption of KJ., supra at 1133.

Subsection 2511(a)(8), "does not require an evaluation of the remedial efforts of either

13 the parent or HS." In re B.C., 36 A.3d 601, 611 (Pa. Super. 2012) (citing C.L.G., 956

A.2d at 1007).

Simply put, Section 2511, including the subsections cited and explained above,

outlines certain irreducible requirements that parents must provide for their children.

Parents who cannot or will not meet the requirements within a reasonable time

following intervention by the state may properly be considered unfit and have their

parental rights terminated. In re KZ.S., supra; In re B.L.L., 787 A.2d 1007 (Pa. Super.

2001).

There is no simple or easy definition of parental duties. However, the appellate

cases make it very clear that parenting is an active rather than a passive obligation

that, even in the face of difficulty, adversity, and incarceration, requires a parent to

take and maintain 'a place of importance in the child's life. The following passage is

instructive:

Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this court has held that the parental obligation is a positive duty which requires affirmative performance.

A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one's parental responsibilities while others provide the child with his or her physical and emotional needs.

14 In re KIS., supra at 759. See also In re Bums, 379 A.2d 535 (Pa. 1997); Adoption of

Baby Boy A. v. Catholic Social Services of the Diocese of Harrisburg, 517 A.2d 1244

(Pa. 1986); In re Shives, 525 A.2d 801 (Pa. Super. 1987).

In relation to the parental requirements outlined in Section 2511, when a parent

is separated from his or her child, it is incumbent upon the parent "to maintain

communication and association with the child. This requires an affirmative

demonstration of parental devotion, imposing upon the parent the duty to exert

himself, to take and maintain a place of importance in the child's life." in re G.P.-R.,

851 A.2d 967, 977 (Pa. Super. 2004). When a parent has abandoned or effectively

abandoned a child,

[t]o be legally significant, the post abandonment contact must be steady and consistent over a period of time, Contribute to the psychological health of the child, and must demonstrate a serious intent on the part of the parent to recultivate a parent -child relationship and must also demonstrate a willingness and capacity to understand the parental role. The parent wishing to reestablish his parental responsibilities bears the burden of proof on this question.

In re ID., 949 A.2d at 919 (case citations and brackets omitted) (emphasis in

or original). Finally, parents are required to make diligent efforts towards assumption

resumption of full parental responsibilities. Accordingly, a parent's vow to cooperate,

after a long period of being uncooperative regarding the necessity or availability of

services, may properly be rejected as untimely or disingenuous. In re Adoption of K.J.,

supra; In re A.L.D., 797 A.2d 325 (Pa. Super. 2002).

Once statutory grounds for termination have been established, the court must,

and welfare in accordance with Section 2511 (b), consider whether the child's needs

15 will be met by termination. A proper Section 2511(b) analysis focuses on whether

termination of parental rights would best serve the developmental, physical, and

emotional needs and welfare of the child. Intangibles such as love, comfort, security,

and stability are involved in the inquiry. One major aspect of the needs and welfare

analysis concerns the nature and status of the emotional bond, if any, between parent

and child. If a bond is determined to exist, the effect on the child of permanently

severing the bond must be analyzed and considered. See In re K.M., 53 A.3d 781

(Pa. Super. 2012); In re T.D., supra; In re L.M., supra; In re Adoption of R.J.S., supra.

As to the bond analysis, the Superior Court has stated:

Inconducting a bonding analysis, the court is not required to use expert testimony, but may rely on the testimony of social workers and caseworkers. In re ZP., 994 A.2d 1108, 1121 (Pa. Super. 2010). This Court has observed that 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 with the natural parent is attenuated. In re K.Z.S., 946 A_2d 753, 764 (Pa. Super. 2008).

In re K.H.B., 107 A.3d 175, 180 (Pa. Super_ 2014).

In addition to a bond examination, a court may equally

emphasize the safety needs of the child under subsection (b), particularly in cases involving physical or sexual abuse, severe child neglect or abandonment, or children with special needs_ The trial court should also examine the intangibles such as the love, comfort, security, and stability the child might have with the foster parent. Another consideration is the importance of continuity of relationships to the child and whether the parent -child bond, if it exists, can be severed without detrimental effects on the child. All of these factors can contribute to the inquiry about the needs and welfare of the child.

16 In re K.Z.S., 946 A.2d at 763 (emphasis in original).

When, as here, 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." 23 Pa.C.S. § 2512(b). However, the existence r absence of a pre -

adoptive home is an important factor. So is the relationship between the child and the

foster or pre -adoptive parents. As ur Supreme Court cogently stated, "[c]mmn sense dictates that courts considering termination must also consider whether the

children are in a pre -adoptive home and whether they have a bond with their foster

parents. In re: T.S.M., 71 A.3d 251, 268 (Pa. 2013). See In re K.M., supra.

In reviewing the evidence in supprt of termination under section 2511(b), our

Supreme Court recently stated:

[I]f the grounds for termination under subsection (a) are met, a court 'shall give primary consideration to the develpmental, physical and emotinal needs and welfare of the child.' 23 Pa.C.S. § 2511(b). The emtional needs and welfare of the child have been properly interpreted to include Antangibles such as love, comfort, security, and stability. In In re EM., [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 T.S.M. 71 A.3d at 267. The Court additionally observed:

contradictory considerations exist as to whether termination will benefit the needs and welfare of a child who has a strong but unhealthy bond to his biological parent, especially considering the existence or lack thereof of bonds to a pre -adoptive family. As with dependency

17 determinations, we emphasize that the law regarding termination of parental rights should not be applied mechanically but instead always with an eye to the best interests and the needs and welfare of the particular children involved....Obviously, attention must be paid to the pain that inevitably results from breaking a child's bond to a biological parent, even if that bond is unhealthy, and we must weigh that injury against the damage that bond may cause if left intact Similarly, while termination of parental rights generally should not be granted unless adoptive parents are waiting to take a child into a safe and loving home, termination may be necessary for the child's needs and welfare in cases where the child's parental bond is impeding the search and placement with a permanent adoptive home.

In weighing the difficult factors discussed above, courts must keep the ticking clock of childhood ever in mind. Children are young for a scant number of years, and we have an obligation to see to their healthy development quickly. When courts fail, as we have in this case, the result, all too often, is catastrophically maladjusted children. In recognition of this reality, over the past fifteen years, a substantial shift has occurred in our society's approach to dependent children, requiring vigilance to the need to expedite children's placement in permanent, safe, stable, and loving homes. ASIA was enacted to combat the problem of foster care drift, where children, like the children in this case, are shuttled from one foster home to another, waiting for their parents to demonstrate their ability to care for the children. In re T.S.M., 71 A.3d at 269.

In these cases, Father has been incarcerated for the entire time that that the

Children have continuously been in the care of others. Incarceration, standing alone,

neither constitutes sufficient grounds for termination of parental rights nor removes the

obligation to perform required "bond effects" and "needs and welfare" analyses.

18 However, it is a factor that must be considered and, in a proper case, such as when a

parent is serving a prohibitively long sentence, may be determinative. In re Adoption of

S.P., 47 A.3d 817 (Pa. 2012); Z.P., 994 A.2d at 1120. "Each case of an incarcerated

parent facing termination must be analyzed on its own facts, keeping in mind...that the

child's need for consistent parental care and stability cannot be put aside or put on

hold simply because the parent is doing what [he or] she is supposed to be doing in

prison.. In re E.A.P., 944 A.2d at 84.

The analysis depends in part an the asserted grounds for termination. In

subsection (a)(1) abandonment cases, our Supreme Court has stated:

[A] parent's absence and/or failure to support due to incarceration is not conclusive on the issue of abandonment. Nevertheless, we are not willing to completely toll a parent's responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in continuing a close relationship with the child. Where the parent does not exercise reasonable firmness in declining to yield to obstacles, his other rights may be forfeited.

In re Adoption of S.P., 47 A.3d at 828 (quoting In re Adoption of McCray, 331 A.2d

652, 655 (Pa. 1975) (footnotes and internal quotation marks omitted). Thus, in an

abandonment case, a parent is required to both utilize available resources and take

affirmative steps to support a parent-child relationship. If the parent fails to do so, his

or her parental rights may be terminated. See In re Adoption of W.J.R., 952 A.2d 680

(Pa. Super. 2008); In re E.A.P., supra; In re KJ., supra. However, utilization of

available resources does not guarantee preservation of parental rights. The statutory

19 criteria, the facts and circumstances of each case, and the best interests, needs, and

welfare of the child must all still be considered.

In cases involving parental incapacity, ur Supreme Curt recently held that: incarceration is a factor, and indeed can be a determinative factor, in a court's conclusion that grounds for termination exist under § 2511(a)(2) where the repeated and continued incapacity of a parent due to incarceration has caused the child to be without essential parental care, control or subsistence and that the causes of the incapacity cannot or will not be remedied.

In re Adoption of S.P, 47 A.3d. at 828. In mre expanded terms, the Supreme Court

stated:

In linewith the expressed opinion of a majority justices inf In re R.I.S., 614 Pa. 275, 38 A.3d 557 (2011), our prir holdings regarding incapacity, and numerous Superior Court decisions, we now definitively hold that incarceration, while nt a litmus test for terminatin, can be determinative of the question of whether a parent is incapable of providing "essential parental care, control or subsistence" and the length of the remaining confinement can be considered as highly relevant t whether "the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will nt be remedied by the parent," sufficient to provide grounds frtermination pursuant to 23 Pa.C.S. § 2511(a)(2).

Id. at 830. In sum, a parent's incarceration "is relevant to the subsectin (a)(2) analysis

and, depending on the circumstances of the case, it may be dispositive of a parent's

ability t provide the "essential parental care, control or subsistence" that the section

contemplates." In re A.D., 93 A.3d at 897.

Finally, before filing a petition for termination of parental rights, the

Commonwealth is generally required to make reasonable efforts to promote 20 reunification of parent and child. In re Adoption of R.J.S.. See also In re Adoption of

M.E.P., 825 A.2d 1266 (Pa. Super. 2003). However, the Commonwealth does not

have an obligation to make reunification efforts indefinitely.

The Commonwealth has an interest not only in family reunification but also in each child's right to a stable, safe, and healthy environment, and the two interests must both be considered. A parent's basic constitutional right to the custody and rearing of his or her child is converted, upon the parent's 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 When reasonable efforts to reunite a foster child with his or her biological parents have failed, then the child welfare agency must work toward terminating parental rights and placing the child with adoptive parents. The process of reunification or adoption should be completed within eighteen (18) months. While this time frame may in some circumstances seem short, it is based on the policy that a child's life simply cannot be put on hold in the hope that the parent will summon the ability to handle the responsibilities of parenting.

In re Adoption of R.J.S., supra at 507 (internal case citations, quotation marks, and

footnote omitted).

Additionally, the failure of an agency to make reasonable efforts to promote

reunification of parent and child will not defeat a properly supported petition for

termination of parental rights. Neither the relevant provisions of Section 2511 nor the

pertinent provisions of the Juvenile Act require a court to consider the reasonable

efforts provided to a parent by the petitioning agency prior to termination of parental

rights. In re D.C.D., 105 A.3d 662 (Pa. 2014); In re Adoption of C.J.P., supra. In In m

D.C.D., our Supreme Court

analyzed the language of Section 2511(a)(2) of the Adoption Act, as well as Section 6351 of the Juvenile Act, 42 Pa.C.S.A. § 6351. The Court reasoned that, while

21 "reasonable efforts may be relevant to a court's consideration of bth the grounds for termination and the best interests of the child," neither of these provisions, when read together r individually, requires reasonable efforts. id at 671-75 (citation omitted). The Court also concluded that reasonable efforts were not required to protect a parent's constitutional right to the care, custody, and control of his or her child. Id. at 676-77. While the Supreme Court in D.C.D. focused its analysis on Section 2511(a)(2), we find the Supreme Court's reasoning equally applicable to Section 2511(2)(8). Like Section 2511(a)(2), nothing in the language of Section 2511(a)(8) suggests that reasonable reunification services are necessary to support the termination of parental rights.

in re Adoption of C.J.P., supra at 1055. Thus, while agencies must provide reasonable

efforts t enable parents to work toward reunification with their dependent children

when ordered to do so, 'the remedy for an agency's failure t provide services is not to

punish aryinnocent child, by delaying her permanency through denying termination,

but instead to conclude n the record that the agency has failed to make reasonable

efforts, which imposes a financial penalty on the agency of thousands if not tens of

thousands of dollars under federal law." In re D.C.D., 105 A.3d at 675.

In his Rule 1925(b) statements in these cases, Father first contends that we

erred by finding that CYS proved statutory grounds for termination of his parental

rights. Under the facts of these cases and the law summarized above, this assignment

of error lacks merit.

The Children have been dependent and continuously in the care of CYS and

their current foster family since April of 2017. Specifically, as of the termination

hearing, the Children had been in care for seventeen mnths. Their time in care far

exceeds the minimum time requirements -6 months and 12 months - of the statutory 22 termination provisions cited by the Agency. Their time in care was also at the back end

f the 18 months within which Courts and child welfare agaencies must achieve

permanency for dependent children. There is and can be no question that the pertinent

time requirements have been satisfied.

Moreover, Father failed to perform parental duties for nearly two years and,

even before he was incarcerated, demonstrated a lack of capacity to perform parental

duties, an inability to handle the Children's needs, and an inability to keep the Children

and others around them safe.

Further, the conditions that caused the Children to come into care remain.

Among other things, Father is still incarcerated_ In this regard, as of the termination

hearing, Father had been incarcerated for 23 months and was not eligible for parole

for another three years. Relatedly, as of now, Father has no specific housing or

release plan and his hoped -for post-release employment is speculative at best.

Father has not seen the Children at all during their dependency. Similarly, he

has had only minimal contacts with them consisting of a handful of phone calls and a

single card written to each of them. Moreover, and very significantly, Father has done

nothing to promote the mental, physical, spiritual, or emotional well-being of the

Children. Rather, since their removal, foster parents - not Father - have provided

nurturing and care for the Children and have insured that their physical, mental,

emotional, medical, developmental, and daily needs have been met.

in finding that Father failed or refused to perform parental duties, that the

circumstances that caused the Children to come into care remain, that Father has

done nothing to ensure their mental, physical, and emotional well-being and

23 development, and in terminating Father's parental rights, we considered but did not

place undue emphasis on Father's incarceration. Rather, in accordance with the law

recited above, we considered Father's past and current periods f incarceration, the

remaining length of his sentence, the subsequent period that he will be under state

supervision, the impact his incarceration has had on the Children, the degree to which

his incarceration incapacitated him from performing parental duties under both the

general and statutory meanings of that term, and his previously-referenced failure to

take meaningful steps to remain in the Children's lives while in jail.

Finally, as discussed below, termination of Father's parental rights satisfies the

needs, welfare, and best interests of the Children.

Under these circumstances and the evidence presented at hearing, it was clear

to us that CYS established grounds for termination of Father's parental rights to the

Children under subsections 2511(a)(1), (2), and (8). It is just as clear to us now.

With respect to the bond effects and needs and welfare analyses required by

Subsections (a)(B) and (b), it was and remains clear to us that the best interests and

welfare of the Children require that Father's parental rights be terminated.

Father expressed his love for the Children. However, it is well settled that a

parent's own feelings of love and affection for a child, standing alone, does not prevent

termination of parental rights. In re Z.P., 994 A.2d 1108 (Pa. Super. 2010); In re L.M.,

923 A.2d 505 (Pa. Super. 2007). This is especially true when, as here, the expression

is not backed up by facts, history, conduct, or action.

The Children have been living almost two years without Father. More precisely,

they have been living without either parent. The Children need and deserve

24 permanency, stability, lave, support, and parental care. Their needs have not been

met by Father. Others have provided parenting for the Children while Father did not.

He has not reached out from prison in any meaningful way, and will not physically be

available as a parent until at the earliest August of 2021. Further, nothing in the record

suggests that Father wilt be able to meet the Children's needs in the future, especially

considering his criminal history, his remaining sentence, his subsequent lengthy period

f supervision, and his current lack f a release plan. Given the facts presented at

hearing, and considering Father's history, we found that the Children's lives simply

could not and should not be put on hold in the hopes that Father, after making parole

or maxing out on his sentence at some point in the future, will summon the ability to

handle the responsibilities of parenting while turning his back on his criminal

I tendencies, finding and maintaining stable and suitable housing and a job, and for the

first time properly caring far three Children.

There appears to be little to no bond between the Children and Father. This is

especially clear as to N.B. who was only one when Father was arrested and went to

jail for two months and 2 16 when he started serving his current sentence. It is even

more obvious as to M.B. who was only eight months old when Father went to jail. As

to B.B., the bond appears to be a negative one as B.B. remembers Father as

someone who abused Mother. It is also evidenced by the fact that the Children did not

want, and have not missed, visitation with Father. Simply, given the facts and

circumstances f this case and Father's history, there is little if any bond between

Father and the Children and what bond there is does not appear to be healthy. Thus,

severing whatever bond exists, will not adversely affect the Children.

25 On the other hand, the Children are bonded with their foster family, two of

whom wish to adopt them. The Children's foster Family have been there for them,

have provided for them, have loved and cared for them, and want to become their

forever family_ The bond that has developed between the Children and their foster

family is a healthy one, the severance of which would be extremely detrimental to the

Simply, under the facts and circumstances of this case, we found that

termination of Father's parental rights so that the Children may be adopted by

members of their foster family would best serve the developmental, physical, and

emotional needs and welfare of the Children and promote their best interests. We

stand by our decision.

In his second assignment of error, Father asserts that we failed to make

reasonable efforts toward reunification with paternal grandmother despite Father's

clear and settled purpose to have his mother care for the children." This assertion may

be disposed of quickly.

Initially, as discussed, reasonable efforts at reunification with a parent are not

required before a parent's parental rights are terminated under Section 2511(a)(2) or

(8) and the failure of an agency to make reasonable efforts to promote reunification of

parent and child will not defeat a properly supported termination petition. In In re

D.C.D., supra; In re Adoption of C.J.P. Given this settled law, it follows that reasonable

efforts to "reunify" with a grandparent are not required before a partent's parental

rights may be terminated. We believe this is especially true in cases where, as here,

the grandparent's son or daughter (the child's parent) is incarcerated.

26 Additionally, and in any event, Paternal Grandmother was not a current

resource for the reasons discussed above, including the fact that the 1CPC had not

been approved and that she had not seen or visited the Children since they came into

care.

Finally, even if the 1CPC had been approved, and despite the general

preference to keep children with appropriate willing family members when possible,

under the facts and circumstances of this case we would not have chosen Paternal

Grandmother over the Children's foster family. As discussed, a bond has developed

between the Children and their foster family. Severing that bond would be detrimental

to the Children. In contrast, there was no evidence of a similar current bond between

the Children and Paternal Grandmother. Father's "clear and settled purpose to have

his mother care for his children" has not been enough to prompt Paternal Grandmother

to visit the Children or call them more than a few times, and has similarly not been

enough to prompt Father to reach out to the Children from prison and maintain a place

in their lives. Under these circumstances, there is an can be no error or abuse of

discretion in choosing foster parents over Paternal Grandmother.

In sum, we found that CYS proved statutory grounds for termination of Father's

parental rights by clear and convincing evidence. We further found that the Children's

needs and welfare are best served by termination of Father's rights so that the

Children may be adopted by members of their foster family_ We remain convinced that

27 our decisions are supported by both the facts and the law, and, moreover, fulfilled and

advanced the best interests of the Children.

BY THE COURT:

Date: 6

Cc: Superior Court of Pennsylvania Jonathan Mark, Judge Brandie Jean Belanger, Esq. Barbara Fitzgerald, Esq. Elizabeth B. Weekes, Esq. Brian Gaglione, Esq.