Case Information

SEE SUPERIOR COURT I.O.P. 65.37 NON-PRECEDENTIAL DECISION IN THE INTEREST OF: S.T.R.R., A IN THE SUPERIOR COURT OF MINOR PENNSYLVANIA APPEAL OF: J.S., FATHER

No. EDA 2016 Appeal from the Order entered August 2016, the Court of Common Pleas Philadelphia County, Family Court, at No(s): AP#: CP-51-AP-0000389-2016, DP#: CP-51-DP-0001748-2014, & FID# 51 -FN -002353-2011. BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ. FILED MAY 08, 2017

MEMORANDUM BY RANSOM: J.S. ("Father") challenges the order granting the petition filed involuntarily

Philadelphia Department of Human Services ("DHS") terminating parental rights daughter, S.T.R.R. ("Child") (born March 2014), pursuant the Adoption Act, 23 Pa.C.S. § 2511(a) (b). We affirm. trial court summarized pertinent facts procedural history follows: family this been known DHS since 2011. F.R.

("Mother") Child's mother, tested positive drugs at the [In March 2014] DHS received a birth of two of her children. General Protection Services report had tested positive for marijuana PCP at the birth Child. put a Safety Plan place stipulating Mother were not *Former Justice specially assigned the Superior Court.

be left alone unsupervised. DHS subsequently received reports that Mother was indeed left with Child unsupervised, and Mother drove while high on PCP with Child the car. On July 22, 2014, DHS learned Father was permitting Mother be with Child unsupervised, and Mother continued use drugs. That same day DHS obtained an Order of Protective Custody and placed Child foster home. On August 1, 2014, the court adjudicated Child dependent and fully committed her DHS custody. The case transferred Community Umbrella Organization [sic] ("CUA") which developed Single Case Plan ("SCP") with objectives for Mother and Father. Over course of 2014 and 2015, Father became fully compliant with objectives, received unsupervised visitation with Child, with the understanding Mother not to left alone with reunification with Father had been Believing Child. approved trial and all parties, CUA mistakenly reunified Child with Father January 9, 2016, implemented supervision. During time Child was unified with Father, Father permitted Mother alone with Child unsupervised. CUA discovered reunification had been approved, Child removed and placed foster care. On April 2016, filed petition terminate Father's parental rights change her permanency goal to adoption. Trial Court Opinion, at 1-2. held evidentiary hearing, at which the case

manager for family, well as Mother Father testified. court summarized the testimony presented with regard Father follows:

At trial, manager testified Child came into care because of Mother's drug use. Father lived together when Child came into care. Father has had same objectives life case, and has had them explained to him at several meetings. Father's SCP objectives are to attend Child's medical appointments, obtain appropriate housing, take domestic violence classes, attend weekly supervised visits with Child. Father completed the domestic violence classes successfully and has appropriate housing. Father consistent visits, interacts positively Child. In the past been given unsupervised visits, then been erroneously reunified with Father. During this reunification, Father left Child unsupervised with Mother, against court orders and in violation of the Safety Plan. Mother appeared be high drugs during that time. The CUA case manager testified that she longer trusts Father to keep Child and Mother apart, since he violated the Safety Plan. The CUA case manager also testified that Father claims Mother lives elsewhere, but is not able confirm that they live apart. Since Child's reunification and subsequent removal, Father has consistently attended visits, but Father does not act in fatherly manner. Child does not consider Father be her dad. Child did exhibit bond with Father when she was removed. CUA manager testified Mother and Father lived apart when Father violated the Safety Plan, but now were living together again. placed with her aunt uncle ("Foster Parents") and considers them her mom dad. Child very closely bonded with Foster Parents, and has lived with them for two years. case manager testified it would in Child's best interest remain with the Foster Parents adopted by them. Father testified if he reunified with Child, Mother would go live somewhere else. also testified he had another residence Abington where intended live, where he successfully parenting other children. Father testified still with Child, who screamed when she was removed from care. On cross-examination Advocate, Father testified had already ruled out the Abington residence inappropriate for reunification with Child. she lives Father, but would move out if reunification likely.

Trial Court Opinion, 9/21/16 , at 2-3 (citations omitted).

Upon hearing the above testimony, arguments counsel, the made the following conclusions regarding Father: We'll find reasonable efforts. [Child] currently maternal aunt uncle. [She's] doing well home - - it's through Wordsworth.

As the parents, back November 6th, 2015, the Court I think we actually had pretty long hearing - - permanency review hearing, were the court given [Father] unsupervised visits made some conditions put [Father] position

-3 reunify with [Child], also by agreement child advocate,

okay?

Subsequently, [Father] was given that opportunity reunify with [Child], even though the advocate had not agreed to it.

And, in that case, once found out the error that there was agreement there was no approval, the case was relisted - - we - - again, we had a pretty long permanency hearing on 1/29/2016.

By that time, CUA already gone to [Father's] home retrieved [Child] [Child] was in care. And, that point, after that hearing there was extensive testimony.

Witnesses that there was violation of the safety plan by [Father], [Father] well aware of what the safety plan was what the conditions were, because [Father's] always been here.

As far as I know, he's always been here court. He's never missed any day that I'm aware of. And, for matter, I believe [Mother] always been here too, so they're well aware of what's been done what's been said courtroom.

I find credible. Now, bond, the Court finds - - I believe the parents, I'm sure, love [Child] enjoy being with [Child] but being parent also assuming responsibility develop real bond.

And often, children, even if they're placed their parents, are still going to love their parents, sometimes even have enjoyable time with parents, but doesn't mean the parents ability parent child.

***

As far [Father], [he] completed most objectives.

Yes, did go parenting, went domestic violence. Again, I'm not sure how convince [Father] the most important thing ability of parent to keep child safe.

And [Father] well aware. At two different hearings, he given unsupervised visits. On January the 6th, a Irrespective not safety plan was put place by CUA. -4

having the agreement advocate, [Father] given a great opportunity to show the ability to parent.

And what happened the 29th of January hearing? Testimony was heard by this Court indicated [Father's] priority not [Child], because allowed [Mother] contact without being supervised the agency.

So, visits went back to supervised, and [Child] stayed care. The Court also heard testimony that - - so, [Father] is fully compliant, but the ability only to be physical [sic] compliant is - - it's not only the ability to be physically compliant objectives, but it inability to make and have the parent ability to keep [Child] safe.

So, as to both parents, the Court finds there's clear convincing evidence terminate their rights under 2511 Section - - Subsection (1) (8), and Subsection (b). There would be no irreparable harm done to [Child].

The ability for cannot be one direction only. It's a two-way street. It's two direction - - child to be - - it's a child to parent parent child. parents must exhibit ability be able keep

child safe make the right decisions learn appropriately from the classes they have taken, such parenting, domestic violence classes, the willingness able to make the right decision order to keep child safe. Court finds there would be no irreparable harm done [Child], since there parent -child bond, it would in best interest change to goal adoption. Therefore, the

goal changed to adoption. N.T., at 110-115.1 Father filed this timely appeal. Both Father trial court complied Pa.R.A.P. 1925. not filed appeal. In appeal, Father does not challenge goal change.

-5 raises the following issues appeal: 1. Whether the trial court erred by terminating the parental

rights of [Father] pursuant 23 Pa.C.S.A. sec. 2511(a)(1) without clear convincing evidence of [Father's] intent relinquish parental claim or refusal perform parental duties.

2. Whether the trial court erred by terminating the parental

rights of [Father] pursuant 23 Pa.C.S.A. sec. 2511(a)(8) without clear convincing evidence that the conditions that led the removal or placement of [Child] continue exist termination of parental rights would best serve the needs welfare of [Child]. 3. Whether the trial court erred by terminating the parental

rights of [Father] pursuant 23 Pa.C.S.A. sec. 2511(b) without clear convincing evidence there no between [Father Child] termination would serve best interest of [Child]. Father's Brief at 7. standard of review termination of parental rights cases requires

appellate courts "to accept the findings of fact credibility determinations trial if they are supported record." In re Adoption of S.P., 47 A.3d 2012). "If the factual findings are supported, appellate courts review determine if the made an error of law or abused its discretion." Id. We may reverse decision based on abuse discretion only upon demonstration "manifest unreasonableness, partiality, prejudice, bias, or ill -will." Id. We may not reverse, however, merely because record would support different result." Id. at 827.

We give great deference trial courts often first-hand observations of the parties spanning multiple hearings. In T.S.M., 71 A.3d 251, 267 (Pa. 2013). The trial court free believe all, part, or none likewise free to make all credibility of the evidence presented is determinations resolve conflicts the evidence. In re M.G., 855 A.2d 73-74 (Pa. Super. 2004). In addition, order affirm the termination of parental rights, this Court need only agree any one subsection under Section 2511(a). See In re B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).

The burden upon petitioner prove by clear convincing evidence asserted grounds for seeking termination of parental rights are valid. In R.N.J., 985 A.2d 273, 276 Super. 2009). We explained "[t]he standard of clear convincing evidence is defined testimony that so clear, direct, weighty convincing enable trier fact to come a clear conviction, without hesitance, of truth of the precise facts issue." Id. (citations omitted).

Section 2511(a)(1) provides may terminate parental rights if the Petitioner establishes for six months, the parent demonstrated a settled intent relinquish a claim or a refusal or failure perform parental duties: rights parent regard to may be

a)

terminated after petition filed any of the following grounds:

(1) parent conduct continuing period of at

least six months immediately preceding the filing of petition evidenced settled purpose of

-7 relinquishing parental claim to a child or has refused or failed to perform parental duties.

23 Pa.C.S. § 2511(a)(1). This Court has interpreted this provision as requiring the Petitioner to demonstrate a settled intent to relinquish a parental claim a child or a refusal or failure parent:

To satisfy requirements of section 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained at least the six months prior the filing of the termination petition, which reveals a settled intent relinquish claim a child or a refusal or failure perform parental duties.

In Z.S.W., 946 A.2d 726, 730 Super. 2008) (internal citations omitted).

This Court defined "parental duties" in general the obligation to affirmatively consistently provide safety, security stability for child:

There simple or easy definition of parental duties. Parental duty best understood in relation needs a child. A child needs love, protection, guidance, support. These needs, physical emotional, cannot met a merely passive interest in development of the child. Thus, this Court has held the parental obligation a positive duty which requires affirmative performance. This affirmative duty ... requires continuing interest child a genuine effort maintain communication association child. Because child needs more than benefactor, parental duty requires parent exert himself take maintain place of importance the child's life.

Id.

Moreover, parent must exercise reasonable firmness resisting obstacles placed path maintaining the parent relationship:

Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order maintain the parent -child relationship to best of or her ability, even in difficult circumstances. A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in path of maintaining the parent -child relationship.

In B., N.M., 856 A.2d Super. 2004) (internal citations omitted). Most importantly, "parental rights are not preserved waiting more suitable or convenient time perform one's parental with her physical responsibilities while others provide emotional needs." Id.

In the instant case, trial court properly concluded DHS presented clear convincing evidence support the termination of Father's parental rights under Section 2511(a)(1). court reasoned: petition for involuntary termination was filed April 28,

2016. During the six-month period prior the filing of the petition, Father became fully compliant with all of SCP objectives. The sole issue in this case Father permitted Mother see alone unsupervised, violation court orders the Safety Plan. Father has been present at court hearings SCP meetings. CUA have explained to Father he permitted to leave Child alone with Mother. However, January 2016, Father did leave alone with Mother. During time Mother unsupervised with Child, Mother appeared under the influence of drugs, which has been Mother's main issue during the life this case. Mother did not live Father during time, but since moved him again. Father Mother both testified Mother could easily move out if reunification offered again. However, manager unable verify whether live apart. Father intended move out appropriate housing currently shared with Abington deemed Mother, into house inappropriate for reunification. When questioned on why he sought move to an inappropriate house, Father [his] other that child's mother live the Abington residence. other child's mother had lost custody of the other child, but was now compliant with her requirements. Because Father permitted Mother be with Child unsupervised, case manager testified that she does not trust Father to keep them separated. Father has always known Mother cannot left unsupervised with Child. Between January 9 and Father had been erroneously reunified, without Advocate approval, with Child responsible to keep her safe. Mother did not even live with Father at time, but he still allowed Mother see Child unsupervised. Father intentionally violated aware, the Safety Plan. Subsequently, Father even allowed Mother move into his home. The manager testified credibly Father cannot trusted keep Child away from Mother. Father denied allowing Mother any unsupervised contact. In permitting to have unsupervised contact, Father has failed to perform his parental duties. His actions since failure have been start living with Mother while planning to move to inappropriate house order to live his other child. prioritizes needs of Mother over the safety of Child. Trial Court Opinion, 4-5 (citations omitted).

Father argues he has fully complied all goals SCP objectives. According to Father, "has never failed or refused to perform parental duties, nor has indicated settled intent relinquish his Id. Additionally, Father asserts he has "always rights." disputed" claim he has permitted Mother unsupervised contact with Mother "and never opportunity examine the veracity of the hearsay evidence" which this claim based. Id. Finally, Father asserts that "violation safety plan does constitute settled intent relinquish claim nor does it constitute refusal or failure perform parental duties." Father's Brief at 11. We disagree.

Our review of the record supports the trial court's conclusions regarding Father's priorities failure to keep child safe a failure to perform parental duties. See Trial Court's Opinion, 9/21/16 at 5. It for trial court, matter of credibility, determine weight given Father's testimony vis-a-vis testimony case manager. In re M.G., supra.

Moreover, although Father claims pertinent testimony presented at January 29, 2016 permanency review hearing regarding the safety plan violation based hearsay, the lack of transcript hearing certified record prevents this Court from further review. See Smith v. Smith, 637 A.2d 623-624 Super. 1993) (explaining appellant's failure insure the original record contains sufficient information conduct proper appellate review constitutes waiver issue sought examined). We do note, however, Child's maternal aunt present the hearing, and, according trial court, testified a witness. See Permanency Review Order, 1/29/16; N.T. 8/9/16, at 64-65; see also N.T. (trial states foster parent testified observation of Mother's unsupervised contact with while Father's custody).

Accordingly, the court did abuse its discretion terminating Father's parental rights pursuant 23 Pa.C.S. § 2511(a)(1), we need not consider the other basis for termination under this section. See B.L.W., supra.

We next turn to Father's assertion did meet its burden of proof with regard to Section 2511(b). he and have strong emotional bond, demonstrated her behavior when she taken from him January 2016. According to Father, "offered environment for [Child] thrive and bond her sibling." Father's Brief 13. Finally, Father asserts "failure of the caseworker [DHS] make reasonable efforts toward full proper reunification interfered with [his] ability further strengthen emotional bond with [Child]." Id.

With respect to Section 2511(b), our analysis shifts focus from parental actions fulfilling parental duties the effect terminating will on child. Section 2511(b) "focuses on whether termination of parental rights would best serve developmental, physical, emotional needs welfare of the child." In re: Adoption of .7.M., A.2d 321, 324 (Pa. Super. 2010).

In In C.M.S., 884 A.2d 1284, 1287 Super. 2005), this Court found "intangibles such love, comfort, security, stability are involved inquiry into needs and welfare of the child." In addition, the orphans' court must also discern the nature status parent - child bond, with utmost attention the effect permanently Id. In cases where there evidence of bond severing bond. between parent a child, it is reasonable infer that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63 Super. 2008). Thus, the extent of the bond -effect analysis necessarily depends the circumstances of the particular case. Id. at 763.

Once again, the weight be afforded Father's testimony, well as efforts made CUA reunification, was matter of credibility exclusively within the province of the trial court fact finder. In M.G., supra. Given its credibility determinations, trial court explained:

Throughout life of this case, Father has consistently visited with Child. However, since Child's erroneous reunification and subsequent placement, Father has not behaved fatherly manner at visits. manager testified credibly that Child and Father do not parent/child bond. Child able to separate from Father at visits without crying. When Child was removed from Father after reunification, half -asleep the middle of the night, she was upset. However, social worker testified that she did exhibit bond with Father. Father's own testimony that he intends to move out of the county the Abington residence, which he knows is inappropriate for Child. Father testified that still intends do this because it will permit him to live with other child and child's mother. Father he did this so that other child could current school. remain This demonstrated while cares his other child, placed needs of above needs safety this Child. Child lived Foster Parents for two years closely bonded with them. considers Foster Parents her mom dad. They were able to calm when she removed from Father. It would Child's best interest for Father's parental rights terminated, so Foster Parents could adopt her. Consequently, the did not abuse its discretion when it found it clearly convincingly established there positive, beneficial parent -child [] Father, that termination Father's rights would not destroy existing beneficial parental relationship.

Trial Court Opinion, (citation omitted).

Our review of the record supports the trial court's conclusion regarding extent between Father Child. Accordingly, we conclude DHS presented clear convincing evidence termination of Father's parental rights were Child's best interests.

In sum, our review record supports the trial court's order concluding that that met its statutory burden of proving clear convincing evidence Father's parental rights should terminated

pursuant 23 Pa.C.S. §§ 2511(a)(1) 2511(b). Accordingly, we affirm.

Order affirmed.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 5/8/2017