In the Interest of: C.E.C., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C. E. C., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: J. D., FATHER
No. 3439 EDA 2017
Appeal from the Decree September 19, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000947-2016
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT,*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 04, 2018
J.D. (“Father”) appeals from the decree entered on September 19, 2017,
that granted the petition filed by the Philadelphia Department of Human
Services (“DHS”) to involuntarily terminate Father’s parental rights to C.E.C.
(“Child”) (born in June of 2006) and to change the goal to adoption.1,2 We
affirm.
In its opinion, the trial court set forth a brief history of this case, as
follows:
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* Retired Senior Judge assigned to the Superior Court.
1Mother’s parental rights were terminated in March of 2017. We are unaware
of any appeal that she may have filed.
2 A guardian ad litem (GAL), Patricia Cochran, Esq., and a child advocate, Joe
Capozzoli, Esq., were appointed to represent the best interests and legal
interests of Child. Both attorneys participated in the hearing. Moreover, we
note that Attorney Capozzoli reported to the court that he had visited with
Child and Child had indicated his wish to be adopted by his foster parents.
See N.T., 9/19/17, at 26.
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The family became known to [DHS] on May 7, 2014[,] after
DHS received a General Protective Services (“GPS”) report
alleging that Child had 84 unexcused absences, 17 latenesses [sic]
and 4 excused absences[] during the 2013-2014 academic school
year, inter alia. At that time the identity and whereabouts of
[Child’s] father [were] unknown to DHS. During an adjudicatory
hearing on June 4, 2015, before the Honorable Jonathan Q.
Irvine[,] Child was adjudicated dependent and the [c]ourt learned
that J.D. was Child’s biological father. On August 18, 2015, DHS
conducted a Parent Locater Search (“PLS”) on Father[,] which
located him at 3319 Fairhill Street, Philadelphia, PA. On
November 5, 2015, Father was arrested and charged with
Aggravated Assault, Robbery, Conspiracy, Theft, Receiving Stolen
Property, Possession of a Firearm, inter alia. On September 6,
2016, the Community Umbrella Agency (“CUA”) revised Father’s
Single Case Plan (“SCP”). The objectives identified for Father
were (1) to initiate and respond to CUA via phone and
correspondence; (2) to comply with court ordered
recommendations; and (3) to complete [] forthwith [a] drug
screen and assessment.
On or about August 4, 2017[,] DHS filed the underlying
Petition to Terminate Father’s Parental Rights. On September 19,
2017, this [c]ourt ruled to terminate Father’s parental rights
pursuant to 23 Pa.C.S.[] § 2511(a)(1) and (2) and ruled that the
termination of Father’s rights was in the best interest of [] Child
and Child’s goal was changed to adoption pursuant to 23 Pa.C.S.[]
§ 2511(b).
Trial Court Opinion (TCO), 11/30/17, at 2-3 (unnumbered).
The termination/goal change hearing took place on September 19,
2017. Father, who was represented by counsel, took part in the hearing by
telephone from the Curran Freehold Correctional Facility, where he was
incarcerated. The trial court provided the following discussion relating to the
evidence presented at the hearing:
[T]his [c]ourt found clear and convincing evidence to terminate
Father’s parental rights as he failed to remedy the conditions that
brought [] Child into care. Furthermore, Father’s incarceration,
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lack of housing, and failure to make any attempts to visit his Child
while in prison also demonstrated that Father was unlikely to
remedy the conditions within a reasonable period of time. The
[c]ourt further found that because there was no strong bond
between Father and Child[,] terminating parental rights would not
cause the Child irreparable harm. Additionally, it would be in []
Child’s best interest to be adopted due to [his] and his siblings
sharing a supportive pre-adoptive foster home. At the termination
hearing, the [c]ourt reviewed Father’s extensive criminal
history[,] which culminated in a conviction for felony Possession
of a Controlled Substance by an inmate and his continued
incarceration. The CUA Representative testified that Father had
not achieved all of his SCP objectives nor had he attempted to
perform any parental duties[,] which was evidenced by Father’s
decision to not seek visitation with Child from prison. The CUA
Representative testified that Child was in a good pre-adoptive
home and that his grades were improving and that Child had a
parental bond with his foster parents. The CUA Representative
testified that Father was unable to meet Child’s needs and that
there existed no parental bond between Father and Child and that
there had been no contact between Father and Child for a year
and a half. The CUA Representative testified that he believed that
it was in Child’s best interest that the goal be changed to adoption.
The testimony of the CUA [Representative] was deemed to be
credible and accorded great weight. As the testimony before the
[c]ourt on September 19, 2017 indicates, the evidence is clear
and convincing that Father did not remedy the condition that
caused his Child to come into care and that Father continued to
be unable to provide care for his Child, warranting the involuntary
termination of [] Father’s parental rights pursuant to 23 Pa.C.S.
§§ 2511(a)(1) and (2) and 23 Pa.C.S. § 2511(b).
TCO at 4-5 (unnumbered).
At the conclusion of the hearing, the court announced its decision from
the bench, stating:
THE COURT: Having heard no evidence of that, having heard no
evidence of father having family available, I – obviously, I have to
rule in the best interest of the child.
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This child has been in placement for 28 months, since May of
2015. He is in placement with three other siblings. He’s doing
well in the pre-adoptive home.
Father has not been compliant throughout the history of this case
– presently serving five and a half to 18 years’ incarceration.
He’s got a history of drug dealing, carrying guns, I presume
shooting people, with an aggravated assault and firearms
conviction, and he is in no position to parent this child at this time
or in the near future.
Therefore, I find the City has met its burden by clear and
convincing evidence to terminate the parental rights of [J.D.], and
any unknown putative father, under 2511(a)(1) and (2), and
2511(b).
The goal for this child is changed to adoption.
N.T. Hearing, 9/19/17, at 28.
Father filed an appeal to this Court and attached a concise statement of
errors complained of on appeal. See Pa.R.A.P. 1925(a)(2). His concise
statement provides the following:
The Father, JD, wishes to file an appeal on the grounds that the
lower court abused its discretion and erred in law by not doing a
family find and plac[ing] the child with family (maternal and/or
paternal family[)]. Additionally, DHS/CUA did not make
reasonable efforts to help Father to meet his goals and objectives
to be reunified with Father or Father’s family (maternal family,
alternatively).
Father’s Rule 1925(a) Statement.
In his brief, Father sets forth the following two issues:
I. Did the trial court abuse its discretion or err[] in law when
it terminated Father’s parental rights because he was
incarcerated and where CUS made minimual [sic] efforts to
assist Father in meeting his objectives and produced no
evidence?
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II. Did the trial court abuse its discretion or err[] in law when
it denied the Grandparents[’] motion to intervene and care
for [] Child where they were appropriate caregivers and the
Father wanted [] Child with family?
Father’s brief at 4.
Initially, we note that in its brief, DHS asserts that Father has waived
both issues set forth in his brief because they “do not align with the issues
raised in his [c]oncise [s]tatement.” DHS’s brief at 9. We disagree,
recognizing that Pa.R.A.P. 2116, entitled “Statement of Questions Involved,”
provides that the statement of the questions in the brief “will be deemed to
include every subsidiary question fairly comprised therein.” Rule 2116(a).
Father has sufficiently included reference to both issues he wishes to argue in
his concise statement and in his statement of questions in his brief. Therefore,
he has complied with the Rule so as to allow this Court to address his
arguments.
Next, we address Father’s second issue relating to Maternal
Grandfather’s (“MG”) motion to intervene, which we note does not appear of
record. Father points out that in the permanency review order, dated March
2, 2017, the court directed “DHS to explore all family resources to include
Maternal Grandfather.” Permanency Review Order, 3/2/17. Additionally, the
record contains a continuance order, dated June 21, 2017, which states, “Case
was listed for Motion to Intervene (which was denied)[.]” Continuance Order,
6/21/17. We are also aware that the court referenced MG’s motion to
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intervene at the September 19, 2017 hearing. Specifically, the court stated
that an attorney entered an appearance for MG on October 31, 2016, and filed
a motion to intervene, which the court had denied. N.T., 9/19/17, at 25. The
court also stated that “it was a little late in the game for the maternal
grandfather to enter.” Id.
To support his argument relating to the intervening of MG, Father cites
23 Pa.C.S. § 5324, which sets forth the requirements for standing for any
form of physical or legal custody. The pertinent portion of that statute is
section 5324(3), which provides the requirements for standing for a
grandparent who is not in loco parentis to the child. Father further refers to
a hearing held on June 21, 2017, at which he claims MG was in attendance
with counsel. It appears that the June 21st hearing occurred in the context of
the dependency matter, but other than the orders and comments identified
above, no transcript of that hearing appears in the certified record.
DHS counters Father’s argument, stating that neither Father nor MG
appealed from the June 21st order and that, therefore, the issue has been
waived. We are compelled to agree with DHS’s position. In K.C. v. L.A., 128
A.3d 774 (Pa. 2015), our Supreme Court with reliance on In re Barnes
Found., 871 A.2d 792 (Pa. 2005), stated that “a common pleas court’s order
denying intervention is one type of order which must be appealed within thirty
days of its entry under Rule of Appellate Procedure 903, or not at all, precisely
because the failure to attain intervenor status forecloses a later appeal.” K.C.,
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128 A.3d at 780 (quoting Barnes, 871 A.2d at 795). The K.C. Court further
explained:
While Barnes did not involve a child custody action, its
language is broad and applies to any “common pleas court’s order
denying intervention.” Barnes, 871 A.2d at 794. Moreover, the
rationale behind requiring the immediate appeal of a denial of
intervention in Barnes—namely, the risk of interference with
subsequent trial proceedings—is even more pronounced in the
context of a child custody action, given the significant interests at
stake. We, therefore, find that Barnes applies to the trial court’s
order in the instant case. Accordingly, because Barnes
unequivocally requires any party who was denied intervention and
who satisfies the requirements of Rule 3138 to appeal from the
order denying intervention within 30 days of its entry or lose the
right to appeal the order entirely. Appellants’ right to appeal from
the order denying intervention in the instant case will be
manifestly lost if they are not permitted to appeal the order.
8 This court also indicated that the same requirement
applies to a party appealing an order denying
intervention under Rule 312. See Barnes, 871 A.2d
at 794.
We recognize that this result may appear to be in tension
with our goal of achieving the prompt resolution of child custody
disputes, as permitting the piecemeal appeal of an order denying
intervention may delay custody proceedings. However, we find
this delay is preferable to the alternative of completely denying a
party the right to file an appeal—given the possibility that the
party does, in fact, have standing and should have been granted
intervention—which then forces that party to file his or her own
separate custody action in order to seek redress.
K.C., 128 A.3d at 780-81. Accordingly, because no appeal was filed within
thirty days of the June 21, 2017 order denying intervention, that issue must
be considered waived.
We now turn to Father’s first issue wherein he claims that the trial court
erred by terminating his parental rights under 23 Pa.C.S. § 2511(a)(1).
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Essentially, Father argues that the evidence presented by DHS was vague,
that no objectives had been established for Father, and that no outreach was
made at the prison where Father was housed.
We review an order terminating parental rights in accordance with the
following standard:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent evidence.
Absent an abuse of discretion, an error of law, or insufficient
evidentiary support for the trial court’s decision, the decree must
stand. Where a trial court has granted a petition to involuntarily
terminate parental rights, this Court must accord the hearing
judge’s decision the same deference that we would give to a jury
verdict. We must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s decision is
supported by competent evidence.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:
The standard of clear and convincing evidence is defined as
testimony that is so “clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.”
Id. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
The trial court is free to believe all, part, or none of the evidence presented
and is likewise free to make all credibility determinations and resolve conflicts
in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004). If
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result. In re Adoption of T.B.B.,
835 A.2d 387, 394 (Pa. Super. 2003).
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We are guided further by the following: Termination of parental rights
is governed by Section 2511 of the Adoption Act, which requires a bifurcated
analysis.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. Initially, the focus is on the conduct of the parent. The
party seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory grounds
for termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S. § 2511,
other citations omitted). The burden is upon the petitioner to prove by clear
and convincing evidence that the asserted grounds for seeking the termination
of parental rights are valid. R.N.J., 985 A.2d at 276.
With regard to Section 2511(b), we direct our analysis to the facts
relating to that section. This Court has explained that:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, “Intangibles
such as love, comfort, security, and stability are involved in the
inquiry into the needs and welfare of the child.” In addition, we
instructed that the trial court must also discern the nature and
status of the parent-child bond, with utmost attention to the effect
on the child of permanently severing that bond. Id. However, in
cases where there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists. In re K.Z.S.,
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946 A.2d 753, 762-63 (Pa. Super. 2008). Accordingly, the extent
of the bond-effect analysis necessarily depends on the
circumstances of the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
In this case, as noted above, the trial court terminated Father’s parental
rights pursuant to section 2511(a)(1), (2) and (b).3 We need only agree with
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3 These portions of the statute provide:
(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
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the trial 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).
In his brief, Father only takes issue with the trial court’s determination
as to subsection (a)(1), essentially asserting a lack of credible evidence to
support the termination of Father’s parental rights. He makes no reference to
subsection (a)(2); nor does he address section 2511(b). Under these
circumstances, it is apparent that Father does not disagree with the trial
court’s determination as to subsection (a)(2) or section 2511(b). Therefore,
we need not address further Father’s assertion of error relating to subsection
(a)(1), because we may conclude that the petition requesting termination was
properly granted under subsection (a)(2) and section (b). Moreover, we note
that Father’s contentions center solely on allegations relating to credibility,
which we cannot overturn because our review reveals that the trial court’s
findings are supported by competent evidence. See T.B.B., 8335 A.2d at
394. Accordingly, Father is not entitled to any relief.
Decree affirmed.
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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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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/18
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