In the Int. of: N.I.C., Appeal of: C.C. ( 2018 )

J-S45003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.I.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.C. :
:
:
:
: No. 548 MDA 2018
Appeal from the Decree Entered February 28, 2018
In the Court of Common Pleas of Dauphin County
Orphans' Court at No(s): 2 AD 2018
CP-22-DP-0000060-2014
IN THE INTEREST OF: J.I.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.C. :
:
:
:
: No. 549 MDA 2018
Appeal from the Decree Entered February 28, 2018
In the Court of Common Pleas of Dauphin County
Orphans' Court at No(s): 3 AD 2018
CP-22-DP-0000062-2014
BEFORE: PANELLA, J., OTT, J., and PLATT*, J.
JUDGMENT ORDER BY PANELLA, J. FILED OCTOBER 03, 2018
C.C. (“Father”) appeals from decrees entered February 28, 2018, which
granted the petition filed by the Dauphin County Social Services for Children
and Youth and terminated his parental rights to his children, N.I.C. (born
March 2008) and J.I.C. (born January 2010), pursuant to 23 Pa.C.S.A. §
2511(a)(1), (2), and (b) of the Adoption Act. We affirm.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S45003-18
For a recitation of the facts and procedural history of this case, we refer
the reader to the trial court opinion. See Trial Court Opinion, filed 4/25/18, at
1-4.
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).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court, it is our
determination that there is no merit to the questions raised on appeal. The
trial court’s thorough opinion, filed on April 25, 2018, comprehensively
discusses and properly disposes of the two questions presented on appeal. We
adopt that opinion as our own and affirm.
Decrees affirmed.
-2-
J-S45003-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/03/2018
-3-
Circulated 09/25/2018 09:39 AM
TI\J THE MATTER OF IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PEl\JNSYLVANIA
ORPHANS' COURT DIVISION
Minor
;. : NO. 2 AD 2018/CR-22-DP-60-2014
and
NO. 3 AD 2018/CR-22-DP-62-2014
\.
TRIAL COURT OPINION
This appeal follows the termination of the parental rights by Decree of February 26, 2018, of
Cflllt C- ("Father") to Nlll1 I .. Cllt("N.I.C.") born March. 2008, and Jazell
I8 Cll9("J.I.C. ") born January.. 2010. By Decree of the same date, the Court terminated
the parental rights of utll 811 ("Mother"). Mother does not appeal.
At the conclusion of the hearing on the Petition for Termination of Parental Rights and Goal
Change to Adoption on February 26. 2018, we placed on the record our reasons in support of the
Decree. (Transcript of Proceedings, Involuntary Termination, February 26, 2018, pp. 99-
103)(hereinafter, "N.T. "). We amplify those reasons with this Opinion.
FACTUAL BACKGROUND
In February 2014, Dauphin County Social Services for Children and Youth ("Agency")
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received a referral that N.I.C., J.I.C. ("Children") and two siblings lacked proper supervision.
1
The February 26, 2018 Decree also terminated the parental rights of different fathers to siblings N. MK, N.A W.
and C. E.S .. Fathers to those children did not appeal.
1
(N.T. pp. 12- 13). At the time, Mother allowed her grandmother, who was in failing health, to
dre for1t�i childrSii.. The Agency created a Family Service Plan which included the services of
Short Term Therapeutic Outreach to Prevent Placement. Id. However, on April 7, 2014, police
found J.I.C., then age 4, wandering unsupervised at a high traffic intersection. Id. The
Q�p�ndency Court .¥,aster held a shelter care hearing on April 10, 2014. Following an
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adjudication and disposition hearing on April 16, 2014, the Dependency Court deemed the
children dependent and ordered them placed in the care and custody of the Agency. O\f.T. p. 14).
Father did not attend the hearings. Id.Father first presented himself to the Agency in August 2015 and requested visits with N.I.C.
and J.I.C. (N.T. p. 33; N.T. p. 36). Father acknowledged receipt of the Family Service Plan.
(N.T. p. 81). The Agency established, and provided Father with, the service objectives. Father
participated in meeting those objectives as follows:
j, !t l.!- R�imburse DaupluJ C6�{n��r,chfi'a· s;�pp01i expenses related t�,the Children.
r�
'The Agency relieved Fa{her of this requirement based upon his incarceration. (N.T. p.
33).
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·' ·-·· ".1c·.�·-
2. Maintain consistent contact with the Children.
Father completed visitation orientation and attended two supervised visits with the
children in September 2015. (N.T. p. 34; N.T. p.48). On September 29, 2015, Father
was incarcerated and did not complete the next scheduled visit. (N.T. pp. 34-35).
3. Notify the Agency within 24 hours of a new residence or new contact information.
Father did not notify the Agency of his incarceration.
Although aware of their placement, Father did not maintain contact with the Children. (N.T.
p. 62). Mother gave birth to a fifth child in January 2016. In April 2016, based upon Mother's
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progress toward her goals, the Agency returned the Children to Mother's care under court-
ordered protective supervision .. (N.T. p. 62). Father had no contact with N.I.C. and J.I.C. while
the case remained open and the Children resided with Mother. (N.T. p.63; N.T. p. 73; p.80).
Father stated that he did not maintain contact because he and Mother did not get along. (N.T. p.
73). Because Mother failed to maintain compliance with the goals, the Children were removed
from Mother's care on January 25, 2017. (N.T. p. 45).
During 2016 and early 2017, the Agency sent letters to Father at his last known address of
1320 Walnut Street, Harrisburg, (N.T. p. 89; p. 93). No letters were returned to the Agency. (Id.).
On February 16, 2017, the Agency learned of Father's incarceration at SCI Dallas, where he had
been incarcerated on drug charges since October 6, 2016. (N.T. p. 53). Father failed to notify the
Agency of his whereabouts. (N.T. p. 67; p. 72; pp. 82-83).
In February 2017, the Agency undertook family finding efforts as to Father's relatives. (N.T.
p. 89). The Agency received no responses. (Id.)
On April 18, 2017, the Court made a finding of Aggravating Circumstances as to Father for
failure to maintain substantial and continuing contact with N.I.C. and J.I.C. for a period of six
months.
Father wrote letters to N.I.C. and J.I.C. in late 2017 and early 2018. (N.T. p. 40; pp. 58-59).
Although Father knew the phone number of the Children's foster family, Father never called the
foster family to speak to the Children. (N. T. p. 81). Father testified that he wrote to the Children
at the address of the foster family. (N.T. p. 74).
Father testified that he is eligible for parole in March 2018. From April 2014 through the date
of the hearing, Father was incarcerated for three and one half years. (N.T. p. 79) Father testified
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Father testified that he is eligible for parole in March 2018. From April 2014 through th
of the hearing, Father was incarcerated for three and one half years. (N.T. p. 79) Father te
that after release from incarceration, he plans to live at the Walnut Street residence, whicl
his sister inherited upon their mother's death. (N.T. p. 84).
N.I.C. and J.I.C. reside in a foster home with their siblings and two foster siblings. J.I.
resided there since September 2017 and N.I. C. since October 2017. (N.T. p. 37). N.I.C. a1
J.I.C. have progressed well since removal from Mother's custody. The foster family has
consistently ensured that N.I.C. and J.I.C. receive the medication, therapy and educational
support which their mental health concerns require. (N.T. pp. 37-39). The Children interac
with their foster parents and their siblings. (N.T. p. 39). J.I.C. does not know Father. (N.T
64).
DISCUSSION
The Agency met its burden of proving that statutory grounds exist for and that the childrer.
interests require termination of Father's parental rights.
The standard of review governing the trial court's termination of parental rights is well!
Namely,
When reviewing an appeal from a decree terminating parental
rights, [the Superior Court] is limited to determining whether the
decision of the trial court is supported by competent evidence. See
In re KC. f!V., 456 Pa. Super. I, 689 A.2d 294, 298 (1997). Absent
an abuse of discretion, an error of law, or insufficient evidentiary
support for the trial court's decision, the decree must stand. Id.Where a trial court has granted a petition to involuntarily terminate
parental rights, [the Superior Cami] must accord the hearing
judge's decision the same weight we would give to a jury verdict.
See In re Child M., 452 Pa. Super. 230, 681 A.2d 793, 800 (1996).
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. See In re Matsock, 416 Pa.Super. 520, 611
4
A.2d 737, 742 (1992). In re C. S. 761 A.2d 1197, 1199 (Pa.
Super. 2000).
The Agency, as the party seeking termination, bears the burden of establishing by clear and
convincing evidence that grounds exist for termination of parental rights. In re JD. WA1., 810
A.2d 688, 690 (Pa. Super. 2002). The standard of clear and convincing evidence means
"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." Matter of
Sylvester, SSS A.2d 1202, 1203-1204 (Pa. 1989).
,
The Agency sought termination of Father's parental rights based upon the Adoption Act, 23
Pa.C.S. §2511 Section (a)(l) and §2511 Section (a)(2) which provide:
(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.
***
(23 Pa.C.S. §2511 Section (a)( 1) and §2511 Section (a)( 2 )).
In considering whether the party seeking termination has satisfied these provisions, the
Appellate Court keeps in mind that a parent has an affirmative duty to work towards the return of
his or her children. In re Adoption of JJ, 511 Pa. 590, 602, 515 A.2d 883, 889 (Pa. Super.
1986). At a minimum, that "affirmative duty requires that the parent show a willingness to
cooperate with CYS to obtain the rehabilitative services necessary to enable the parent to meet
5
the duties and obligations inherent in parenthood." Id. In a termination proceeding, the trial
court must consider all the circumstances in determining whether a parent has fulfilled his
obligations; the court must further measure the parent's performance in light of what would be
expected of any individual under similar circumstances. Matter of ML. W, 307 Pa. 29, 33-34,
452 A.2d 1021, 1023-24 (1982) (citations omitted). Further, the Appellate Court need only agree
with the trial court's decision as to any one subsection in order to affirm the termination of
parental rights. In re JE. 745 A.2d 1250 (Pa. Super. 2000). See also, In re JJR., 808 A.2d 934,
. .
940 n.6 (Pa. Super. 2002). The Superior Court has explained:
The statute permitting the termination of parental rights
outlines certain irreducible minimum requirements of care
that parents must provide for their children, and a parent who
cannot or will not meet the requirements within a reasonable
time following intervention by the state may properly be
considered unfit and have her parental rights terminated.
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.
***
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 time to perform one's parental
responsibilities while others provide the child with his or her physical and
emotional needs.
In re KZ.S., 946 A.2d 753, 759 (Pa. Super. 2008).
We find that clear and convincing evidence, cited in detail, supra, establishes grounds for
termination under 23 Pa.C.S. §2511 Section (a)(l). Our Superior Court has explained:
Section 2511 does not require that the parent demonstrate both a settled
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purpose of relinquishing parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights may be terminated
pursuant to Section 2511 (a)(l) if the parent either demonstrates a settled purpose
ofrelinquishing parental claim to a child or fails to perform parental duties.
In re: CS., 761 A.2d 1197, 1201 (Pa. Super 2001) citing Matter ofAdoption of Charles
E.E.l\1. II, 550 Pa. 595, 602, 708 A.2d 88, 91.
Here, with the exception of evidence of a few letters, Father failed to maintain contact with
the Children since August 2015.
Although we base our decision upon 23 Pa.C.S. §2511 Section (a)(l), we find that the
evidence satisfies grounds for termination under §2511 Section (a)(2) as well.
As to the relevance of a parent's incarceration in applying these statutory provisions, we
recognize that incarceration alone is not sufficient to support termination. In re I G., 93 9 A.2d
950 (2007). "Each case of an incarcerated parent facing termination must be analyzed on its own
facts keeping in mind, with respect to subsection (a)(2), 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 she is supposed to be doing in prison." In re E.A.P. 944 A.2d 79, 84 (Pa: Super. 2008).
"Likewise, a parent's incarceration does not preclude termination of parental rights if the
incarcerated parent fails to utilize given resources and to take affirmative steps to support a
parent-child relationship." In re DJS, 737 A.2d 283, 286 (Pa. Super. 1999). Father presented no
evidence of parenting resources available during his incarceration or how he availed himself of
such resources.
In the instant case, although aware of the Children's placement, Father failed to avoid
criminal activity. "Where the parent does not exercise reasonable firmness in 'declining to yield
to obstacles' his [parental] rights may be forfeited." In re A.L.D., 797 A.2d 326 (Pa. Super
7
.2002). Father committed parole violations which resulted in additional incarceration. (N.T. p.
78).
Best Interests Analysis
Having found that the Agency proved the statutory grounds for termination of parental rights
under 23 Pa.C.S. §25 i 1 Section (a)(l) and §2511 Section (a)(2), we undertake a separate "best
interests" analysis. Pursuant to Section 2511 (b ), a court must give 'primary consideration to the
[developmental, physical and emotional] needs and welfare of the child." In re J E., 745 A.2d
1250, 1254-55 (Pa. Super. 2000) (citations omitted). The statute provides,
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)(l),(6), or (8), the court shall
not consider any efforts by the parent to remedy the condition
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
In addition, while "Section 2511 (b) does not explicitly require a bonding analysis, analysis of
the emotional bond, if any, between a parent and a child is a factor to be considered in determining
the developmental, physical and emotional needs and welfare of the child under §2511 (b ). " In the
Matter of K.K.R.-S., K.MR., K.A.R., 958 A.2d 529, 533 (Pa. Super 2008). The Superior Court has
explained:
Intangibles such as love, comfort, security, and stability are involved when inquiring about
the needs and welfare of the child. The court must also discern the nature and status of the
parent child bond, paying close attention to the effect of permanently severing the bond.
In re CP., 901 A.2d 516, 520 (Pa. Super. 2006).
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The record is devoid of evidence of a bond with Father which, if broken, would cause
detriment to the children. Father presented no testimony that he has ever lived with the Children.
To the contrary, we find that the Children would suffer if removed from the stable, caring and
loving pre-adoptive home.
We recognize that Father professes his love for the Children and seeks additional time within
which to prove that he can properly parent after release from incarceration. Father testified as to
his plans for his.residence and employment after release. In deciding the issue of the best
interests of a child, our Appellate Courts have noted that it is essential to allow a child "a chance
to have his fundamental needs met without the constant insecurity that comes with knowing that
someday, perhaps in the unreasonably distant future, he might again be wrenched away from his
committed and capable caregiver." In re NC., 763 A.2d 913, 919 (Pa. Super. 2000). This Court
has grave concerns about the impact upon the Children of additional months of uncertainty and
of potential removal from the foster home to live with a father they do not know.
Finally, Father presented no evidence in support of the claim that the Agency failed to
properly consider family members as care or adoption resources. No relatives responded to
family finding letters the Agency sent nor did any appear at the hearing. ! 'i
[�---
For all of the foregoing reasons, the Decrees of termination should be affirmed. \�
(.,.)
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BY THE COURT:
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April __J. '. ____,_-5�-
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