In the Interest of: A.J.B., a Minor ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.J.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.C., FATHER
No. 1571 EDA 2016
Appeal from the Decree April 29, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000793-2015
FID: 51-FN-4466-2013
BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES FILED DECEMBER 19, 2016
A.C. (“Father”) appeals from the April 29, 2016 decree involuntarily
terminating his parental rights to his three-year-old daughter, A.J.B. We
affirm.
During June 2013, A.J.B. was born ten weeks premature and
underweight, and both she and R.W. (“Mother”) tested positive for opiates.
A.J.B. remained in the hospital for approximately two and one-half months
before she was discharged to Mother.1 While the Philadelphia Department of
____________________________________________
1
Although it is unclear whether A.J.B.’s current behavioral issues are related
to her postnatal condition, the record reveals that A.J.B. receives early
childhood intervention services and has been evaluated by behavioral health
specialists.
* Former Justice specially assigned to the Superior Court.
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Human Services (“DHS”) became involved with the family immediately after
A.J.B.’s birth, it did not initiate in-home protective services until July 22,
2013, when it became apparent that Mother could not care for A.J.B., and
her three half-siblings who are not related to Father.2 Father, who was
uncertain of A.J.B.’s parentage, did not reside with the family; however, he
accompanied Mother to the hospital to visit the child.
The juvenile court matter progressed, and on November 21, 2013,
A.J.B. and her half-sisters were adjudicated dependent. The children were
committed to DHS care and custody and the agency placed them together in
what is now their pre-adoptive foster home. Father did not interact with the
DHS until August 2015, nearly two years later, when he contacted the
agency. Father testified that he “was aware of the situation” for as long as
one year prior to contacting the agency. N.T., 4/29/16, at 12. While he had
suspected A.J.B. was his daughter, he was unsure, and did not interact with
Mother except for receiving photographs of the child from Mother’s Facebook
page. Father was not involved with A.J.B. following her discharge from the
hospital, and he failed to provide any legitimate explanation for his inaction.
DHS advised Father of the next two hearing dates and encouraged him to
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2
The trial court terminated Mother’s rights to A.J.B. and her half-siblings on
March 2016. This appeal does not concern that order or the status of the
other children.
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appear, identify himself to the court, and request visitation and a paternity
test. Father missed the hearings because his schedule was too busy.
During a subsequent planning meeting, in which Father participated by
telephone, the agency encouraged him to establish paternity, maintain
involvement with dependency proceedings, form a relationship with his
daughter, and document that he had a suitable residence. Father failed to
achieve the goals of the family service plan (“FSP”). As outlined, infra,
Father did not participate consistently in the dependency hearings, establish
a relationship with A.J.B., attend visitation, or document that he had
obtained a suitable residence.
On March 14, 2016, the trial court ordered a paternity test and weekly
supervised visitations.3 Father missed the first three visitations, and out of
the six supervised visitations that were offered between March 14, 2016 and
April 29, 2016, he attended only two. The first visit with A.J.B., occurred on
April 14, 2016; however, Father terminated the visitation after ten minutes
because the nearly three-year-old child cried inconsolably and refused to sit
with him. The subsequent visitation was canceled because Father arrived
twenty-five minutes late. Father simply failed to attend the final visitation,
which had been scheduled for April 28, 2016.
____________________________________________
3
The results of the paternity test revealed 99.99% probability that Father
was A.J.B.’s biological parent.
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Meanwhile, having terminated Mother’s parental rights to A.J.B. and
her half-siblings during March 2016, on April 12, 2016, DHS filed a petition
to terminate Father’s parental rights to his daughter pursuant to § 2511
(a)(1), (2), (5), and (8) of the Adoption Act. During the ensuing trial, the
agency presented the testimony of Khaliah Moody, the caseworker assigned
to the family since October 15, 2014, and introduced portions of the juvenile
court record. Father testified on his own behalf. In addition to presenting
specific examples of Father’s failure to perform parental duties, Ms. Moody
addressed A.J.B.’s life with her pre-adoptive foster parents, testified that
they were satisfying A.J.B.’s specialized needs, and opined that A.J.B. would
not suffer irreparable harm if the court terminated Father's parental rights so
that she could be adopted along with her half-siblings. The trial court made
express credibility determinations in favor of Ms. Moody. See Trial Court
Opinion, 6/22/16, at unnumbered page 5. At the conclusion of the trial, the
court terminated Father’s parental rights to A.J.B. pursuant to § 2511(a)(1),
(2) and (b). This timely appeal followed.
Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise
statement of errors complained of on appeal concomitant with his notice of
appeal. He presented two questions, which he reiterates on appeal as
follows:
1. Whether the Trial Court erred in [t]erminating Appellant’s
[p]arental [r]ights under 23 Pa.C.S.A. [§] 2511(a)(1) [when] the
evidence [was] insufficient to establish [that] Father had
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evidenced a settled purpose of relinquishing parental claim, or
. . . refused or failed to perform parental duties.
2. Whether the Trial Court erred in [t]erminating Appellant’s
[p]arental [r]ights under 23 Pa.C.S.A. [§] 2511(a)(2) [when] the
evidence [was] insufficient to establish [that] Father caused
[A.J.B.] to be without essential parental care [that] could . . .
not have been remedied.
Father’s brief at 5.
Our standard of review is well settled.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Involuntary termination of parental rights is governed by § 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938. As the party petitioning for
termination of parental rights, DHS “must prove the statutory criteria for
that termination by at least clear and convincing evidence.” In re T.R., 465
A.2d 642, 644 (Pa. 1983). Clear and convincing evidence is defined as
“testimony that is so clear, direct, weighty, and convincing as to enable the
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trier of fact to come to a clear conviction, without hesitancy, of the truth of
the precise facts in issue.” Matter of Sylvester, 555 A.2d 1202, 1203–04
(Pa. 1989).
As noted, the trial court terminated Father’s parental rights pursuant
to § 2511(a)(1), (2) and (b), which provide as follows.
(a) General Rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary for
his physical or mental well-being and the conditions and
causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent.
....
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S. § 2511(a)(1), (2) and (b).
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As “we need only agree with [the court’s] decision as to any one
subsection in order to affirm the termination of parental rights[,]” we review
the trial court analysis under §2511(a)(1). See In re B.L.W., 843 A.2d
380, 384 (Pa.Super. 2004) (en banc).
With respect to § 2511(a)(1), this 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. The court should consider the entire
background of the case[.]
In re A.S., 11 A.3d 473, 482 (Pa. Super. 2010) (citations omitted).
Regarding the definition of “parental duties,” we have stated,
There is no simple or easy definition of parental duties.
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.
....
Parental duty requires that the parent act affirmatively with good
faith interest and effort, and not yield to every problem, in order
to maintain the parent-child relationship to the best of his 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 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 . . . her physical and emotional
needs.
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In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted)
(quoting In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003).
Once the evidence establishes a failure to perform parental duties or a
settled purpose of relinquishing parental rights, the court must then engage
in three additional lines of inquiry: (1) the parent's explanation for his or her
conduct; (2) the post-abandonment contact between parent and child; and
(3) consideration of the effect of termination of parental rights on the child
pursuant to Section 2511(b). In re Z.S.W., 946 A.2d 726, 730 (Pa.Super.
2008).
Instantly, the record supports the trial court’s conclusion that Father
failed to perform his parental duties. During the termination hearing, Ms.
Moody testified that Father knew the child was born during August 2013,
visited the child in the hospital prior to discharge, and as early as August
2014, he suspected that he was the birth father. Nevertheless, he did
nothing for two years while the child initially struggled in Mother’s care and
then was the subject of dependency proceedings. Significantly, the evidence
demonstrates that Father was aware that his daughter was in DHS care
because he possessed a photograph of the child that was taken during one
of Mother’s supervised visitations.
Even after Father revealed himself to the agency during August 2015,
he failed to take affirmative steps to perform his parental duties, he rebuffed
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DHS’ initial encouragement to participate in the dependency proceedings,
and he neglected to make in-person contact with his daughter until April
2016. Father participated in the case planning meeting that produced his
FSP goals, but he was too busy to attend several other hearings.
Moreover, when Father finally secured supervised visitations with his
daughter, he missed all but two of them, and terminated one of those visits
prematurely because he could not cope with the child’s crying. The other
visitation was canceled by DHS because Father was twenty-five minutes
late. Finally, in addition to neglecting his FSP objectives relating to
remaining involved in the dependency proceedings and promoting a positive
relationship with the child, Father failed even to document whether he had
obtained suitable housing.
In sum, the certified record demonstrates that Father was either
unwilling or unable to perform his parental duties throughout A.J.B.’s lifetime
and specifically during the six months preceding the agency’s petition to
terminate parental rights. In addition to yielding his parental obligations,
Father failed to utilize visitation, respond to the agency’s outreach, or take
any affirmative steps consistent with his parental duty to provide his
daughter love, protection, guidance, and support.
Having found clear and convincing evidence that Father failed to
perform his parental duties, we next consider his explanation for his inaction
and any post-abandonment contact he had with A.J.B. As it relates to the
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latter inquiry, we observe that Father has only had two face-to-face
meetings with his daughter: the first happened in the hospital immediately
after A.J.B.’s birth; and the other ten-minute interaction occurred
approximately three years later. Thus, there is no evidence of any
meaningful post-abandonment contact to consider.
In relation to the remaining component of § 2511(a)(1), Father asserts
three primary explanations for his inaction. First, Father contends that he
did not know that he was A.J.B.’s birth Father, and insinuates that his
parental duties were not triggered until the court verified his paternity.
Second, he claims that Mother was dishonest about the child’s parentage
and concealed her and A.J.B.’s whereabouts, presumably to defeat Father’s
ability to confirm paternity. Finally, Father asserts that he was too busy,
and DHS refused to accommodate his schedule.
We find unavailing Father’s initial contention that he was not obligated
to perform parental duties until his paternity was confirmed. In reality,
Father had an affirmative obligation to be involved in his daughter’s life.
See In re Z.S.W., supra (rejecting the trial court's rationale that a possible
birth father was not required to perform parental duties until paternity is
verified). Thus, this excuse fails.
Similarly, Father’s reliance upon Mother’s alleged malfeasance is
equally unpersuasive. Father claims the Mother told him that A.J.B.’s birth
father was dead, and he asserts that he did not know how to contact Mother
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to inquire about the child. The certified record does not support Father’s
contention that he could not have located Mother with a minimum effort and
ascertained the truth about A.J.B.’s parentage. For example, during the
trial, Father testified that he was in contact with his and mother’s mutual
friends, who had kept him abreast of his daughter’s condition while she was
in the hospital. N.T., 4/29/16, at 28. Likewise, Father stated that he had a
brief exchange with Mother at a McDonald’s restaurant following her
discharge from the hospital. Id. at 45. Most tellingly, however, Father
testified that he had been in contact with Mother via social media and that
Mother provided him digital photos of A.J.B., which Ms. Moody confirmed
had been taken during Mother’s supervised visitation. Id. at 15, 29. Thus,
Father’s trial testimony belies his instant contention that he was unable to
locate Mother. It is beyond question that, had Father desired to perform his
parental duties, he could have raised the issue during the in-person
exchange, or attempted to contact Mother through mutual friends or by
social media.
Father’s third excuse fares no better. Father complains that his
commercial cleaning businesses and his obligations toward another child
interfered with his efforts to perform his parental duties to A.J.B. For
example, when asked why he was unable to accept Ms. Moody’s invitation to
attend A.J.B.’s dependency hearings, Father simply stated that he “had so
much going on [that] he could not make it.” Id. at 31. Likewise, in relation
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to the missed visitations, he complained that DHS refused to accommodate
his request to introduce A.J.B. to her half-sister. Id. at 46. Father’s
complaints are unconvincing for two reasons. First, the certified record
demonstrates that DHS and the pre-adoptive foster parents modified the
visitations schedule to conform with father’s work requirements. Id. at 24.
Thus, this aspect of the his explanation is factually defective.
Moreover, Father failed to explain how his daily responsibilities and the
stresses of everyday life impacted his ability to fulfill his parental obligations
to A.J.B. Stated plainly, assuming arguendo, that Father’s work schedule
and commitment to his other child impeded his ability to perform, Father did
not provide any evidence to demonstrate that he exercised any degree of
firmness to overcome those obstacles. To the contrary, our review of the
certified record confirms that DHS established by clear and convincing
evidence that Father failed to utilize available resources to establish a
parental relationship or exercise reasonable firmness to resist the obstacles
that he claims impeded his ability to perform his parental duties. No relief is
due.
Finally, while Father does not present an issue on appeal with respect
to § 2511(b), we review the trial court’s needs and welfare analysis in an
abundance of caution. We note that no parental bond exists between A.J.B.
and Father. Rather, as the trial court accurately observed in its opinion, the
meaningful parental bond in this case exists between A.J.B. and her pre-
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adoptive foster parents, with whom she has resided since 2013. We
highlight the court’s reasoning as follows:
In the instant matter, the child does not have a parental bond
with the father (N.T., 4- 29 -16. p. 22). The child has been in
her pre- adoptive foster home for over two years. She shares the
pre[-]adoptive home with her three siblings. She looks to the
foster parent to meet her basic needs. Additionally, the child
receives specialized services through early childhood intervention
which are taken care of by the foster family (N.T., 4- 29 -16. p.
21). Moreover, the child would not suffer irreparable harm if the
father's rights were terminated (N.T., 4- 29 -16, p. 22). Finally,
terminating the parental rights of the father would be in the best
interest of the child (N.T., 4- 29 -16, p. 21).
Trial Court Opinion, 6/22/16, at unnumbered page 5. As the certified record
supports the trial court’s factual determinations, we do not disturb its
conclusion that terminating Father parental rights best satisfies A.J.B.’s
developmental, physical and emotional needs and welfare.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2016
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