In the Interest of: M.S.P., a Minor ( 2016 )

J-S01001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.S.P., a Minor, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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:
APPEAL OF: M.P., Father, : No. 1805 EDA 2015
Appeal from the Order entered May 12, 2015
in the Court of Common Pleas of Philadelphia County,
Family Court Division, No(s): 51-FN-002952-2012;
CP-51-AP-0000043-2015
IN THE INTEREST OF: Q.C.P., a Minor, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
APPEAL OF: M.P., Father, : No. 1806 EDA 2015
Appeal from the Order entered May 12, 2015
in the Court of Common Pleas of Philadelphia County,
Family Court Division, No(s): 51-FN-002952-2012;
CP-51-AP-0000044-2015
BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 28, 2016
M.P. (“Father”) appeals from the Order granting the Petition filed by
the Philadelphia Department of Human Services (“DHS”) involuntarily
terminating his parental rights to his minor female children, Q.C.P. and
M.S.P. (collectively, “Children”), twins born in December 2008, pursuant to
Section 2511(a)(1), (2), (5), (8) and (b), and changing Children’s
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permanency goal to adoption.1 We affirm.
The trial court aptly summarized the factual and procedural history of
this case, which we adopt for the purpose of this appeal. See Trial Court
Opinion, 8/13/15, at 1-6.
Relevantly, Father was convicted of Involuntary Deviate Sexual
Intercourse in 1980 and was in prison until December 2003. Upon his
release, Father was required to register as a Megan’s Law Offender for 10
years. Father spent 5 years in jail, beginning in September 2009, as a result
of his failure to register as a Megan’s Law Offender. Consequently, Father
was in prison for a majority of Children’s lives.
Children were adjudicated dependent on November 26, 2012, after
Mother texted a neighbor to indicate that she had relapsed from drug
treatment, and instructed the neighbor to contact DHS.2 DHS obtained an
Order of Protective Custody, and thereafter, Children remained under the
care of DHS.
Children were placed in a pre-adoptive home in September 2014. On
January 20, 2015, DHS filed an Involuntary Termination of Parental Rights
(“ITPR”) Petition against Father under 23 Pa.C.S.A. § 2511(a)(1), (2), (5),
1
The Order terminated the parental rights of both Father and C.D.
(“Mother”). Trial Court Opinion, 8/13/15, at 1 n.1. Mother does not appeal
from the Order.
2
Previously, in September 2011, Mother called in a General Protective
Services report on herself after an all-day drug binge during which she left
Children unsupervised and without food or water. Mother subsequently
completed both inpatient and outpatient drug treatment programs.
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(8) and (b). The Petition also changed Children’s permanency goal to
adoption. The trial court conducted hearings on February 2, 2015, and April
28, 2015. On May 12, 2015, the trial court terminated Father’s parental
rights under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b), and changed
Children’s permanency goal to adoption. Father filed a timely Notice of
Appeal and a Pennsylvania Rule of Appellate Procedure 1925(b) Concise
Statement.
On appeal, Father raises the following questions for our review:
I. Did the [t]rial [c]ourt err in terminating [Father’s] parental
rights under Pa.C.S.[A. §] 2511?
II. Did the [t]rial [c]ourt err in finding that termination of
parental rights best served [C]hildren’s developmental, physical
and emotional needs under [subsection] (b)?
III. Did the [t]rial [c]ourt err in changing [C]hildren’s goal to
adoption?
Father’s Brief at vi.
We review an appeal from the termination of parental rights in
accordance with the following standard:
In an appeal from an order terminating parental rights, our
scope of review is comprehensive: we consider all the evidence
presented as well as the trial court’s factual findings and legal
conclusions. However, our standard of review is narrow: we will
reverse the trial court’s order only if we conclude that the trial
court abused its discretion, made an error of law, or lacked
competent evidence to support its findings. The trial judge’s
decision is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
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Termination of parental rights is controlled by section 2511 of the
Adoption Act. See 23 Pa.C.S.A. § 2511. The burden is upon the petitioner
“to prove by clear and convincing evidence that its asserted grounds for
seeking the termination of parental rights are valid.” In re R.N.J., 985 A.2d
273, 276 (Pa. Super. 2009). “[C]lear 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. (citation and quotation marks omitted).
Further, 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 the 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).
Satisfaction of any one subsection of Section 2511(a), along with
consideration of Section 2511(b), is sufficient for the involuntary termination
of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). In this case, we will review the trial court’s decision to terminate
Father’s parental rights based upon Section 2511(a)(1) and (b), which state
the following:
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§ 2511. Grounds for involuntary termination.
(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.
***
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511.
Parental rights may be terminated pursuant to Section
2511(a)(1) if the parent either demonstrates a settled purpose
of relinquishing parental claim to a child or fails to perform
parental duties. … [P]arental duty is best understood in relation
to the needs of a child. … [T]his court has held that the parental
obligation is a positive duty which requires affirmative
performance. This affirmative duty … requires a continuing
interest in the child and a genuine effort to maintain
communication and association with the child.
In the Interest of J.T., 983 A.2d 771, 776-77 (Pa. Super. 2009) (internal
quotations and citations omitted).
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In regard to incarceration and the preservation of parental rights, we
have stated the following:
[I]ncarceration of a parent does not, in itself, provide sufficient
grounds for termination of parental rights; however, an
incarcerated parent’s responsibilities are not tolled during [her]
incarceration. … [P]arental duty requires that the parent not
yield to every problem, but must act affirmatively, with good
faith interest and effort, to maintain the parent-child relationship
to the best of [her] ability, even in difficult circumstances.
In the Interest of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (citations
omitted); see also In re S.P., 47 A.3d 817, 828 (Pa. 2012). Further,
[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.
In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citations omitted).
In his first claim, Father asserts that the trial court erred in granting
the ITPR Petition because DHS did not satisfy, by clear and convincing
evidence, that his parental rights should be terminated under Section
2511(a). Father’s Brief at 6. As to the requirements of subsection (a)(1),
Father argues that the trial court relied almost entirely on his incarceration
as evidence of a settled intent to relinquish parental claim and failure to
perform parental duties. Id. at 7-8. Father claims that he has made
efforts to be reunified with Children by sending cards, calling Children while
in placement, and communicating with DHS workers about Children. Id. at
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8-9. Father also asserts that he has participated in the Family Service Plans
by enrolling in a parenting class. Id. at 8.
The trial court appropriately applied Section 2511(a)(1) to this case,
and we adopt its Opinion as to that subsection for the purposes of this
appeal. See Trial Court Opinion, 8/13/15, at 7-9; see also In re B., N.M.,
856 A.2d 847, 858 (Pa. Super. 2004) (concluding that father showed a
settled purpose of relinquishing his parental rights where he sat idle for most
of child’s life while mother performed all parental duties, and that father’s
wish to not have his “parental rights terminated was insufficient to protect
those rights without acting affirmatively to foster a parental relationship with
[c]hild during his incarceration.”).
In his second claim, Father contends that the trial court erred in
determining that termination served Children’s best interests under Section
2511(b). Father’s Brief at 13. Father argues that the social worker’s
testimony regarding Children’s relationship with Father did not rise to the
level of clear and convincing evidence. Id. at 13-14. Father claims that “it
is hard to believe” that Children are completely bonded with the foster
mother after living with her for less than a year. Id. at 14. Further, Father
asserts that adoption in not in Children’s best interests because he is now
ready, willing, and able to care for them. Id.
The trial court set forth the relevant law regarding Section 2511(b),
and determined that it was in Children’s best interest to terminate Father’s
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parental rights. See Trial Court Opinion, 8/13/15, at 12-13; see also In re
T.S.M., 71 A.3d 251, 268 (Pa. 2013) (stating 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.”). Upon our
review, the trial court appropriately applied Section 2511(b) to this case,
and we adopt its Opinion for the purposes of this appeal. See Trial Court
Opinion, 8/13/15, at 12-13.
In his third claim, Father asserts that the trial court erred in changing
Children’s permanency goal to adoption. Father’s Brief at 14. Father argues
that if the trial court erred in terminating his parental rights, it also erred in
determining that DHS should not continue to provide Father with services.
Id. at 15.
When we review a trial court’s order to change the
placement goal for a dependent child to adoption, our standard
is abuse of discretion. In order to conclude that the trial court
abused its discretion, we must determine that the court’s
judgment was manifestly unreasonable, that the court did not
apply the law, or that the court’s action was a result of partiality,
prejudice, bias or ill will, as shown by the record. We are bound
by the trial court’s findings of fact that have support in the
record. The trial court, not the appellate court, is charged with
the responsibilities of evaluating credibility of the witnesses and
resolving any conflicts in the testimony. In carrying out these
responsibilities, the trial court is free to believe all, part, or none
of the evidence. When the trial court’s findings are supported by
competent evidence of record, we will affirm even if the record
could also support the opposite result.
In re N.C., 909 A.2d 818, 822-23 (Pa. Super. 2006) (citations and
quotation marks omitted).
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In a change of goal proceeding, the trial court must focus
on the child and determine the goal in the child’s best
interest. . . . As a practical and legal matter, an order by the
juvenile court changing the child’s placement goal from
reunification to adoption ends any dispute that may exist
between [DHS] and the parent as to the adequacy of [DHS’s]
services aimed at reuniting the parent with [his] children and, of
course, at to whether [DHS] had selected the most appropriate
goal for this family. By allowing [DHS] to change its goal to
adoption, the trial court has decided that [DHS] has provided
adequate services to the parent but that [he] is nonetheless
incapable of caring for the child and that, therefore, adoption is
now the favored disposition. In other words, the trial court order
is the decision that allows [DHS] to give up on the parent.
In the Interest of A.L.D., 797 A.2d 326, 339 (Pa. Super. 1996) (citations
omitted). “Matters of custody and placement for a dependent child must be
decided under the standard of the child’s best interests, not those of his or
her parents.” In re N.C., 909 A.2d at 823 (emphasis in original).
Upon our review, we conclude that there is adequate support in the
record for the trial court’s decision to change Children’s permanency goal to
adoption. Having already determined that it is in Children’s best interests to
terminate Father’s parental rights, we must also agree that it is in Children’s
best interests to change their permanency goal to adoption.
Based upon the foregoing, the trial court did not err in granting the
ITPR Petition and changing Children’s permanency goal to adoption.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2016
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Circulated 01/15/2016 03:56 PM