In Re: T.R.C., A Minor, Appeal of: I.T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: T.R.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: I.T., NATURAL FATHER
No. 947 WDA 2017
Appeal from the Order May 31, 2017
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02-AP-0000189-2016
BEFORE: BOWES, RANSOM, JJ. and STEVENS P.J.E.*
MEMORANDUM BY BOWES, J.: FILED JANUARY 05, 2018
I.T. (“Father”) appeals the orphans’ court order terminating his
parental rights to his daughter, T.R.C.1 We affirm.
T.R.C. was born on October 21, 2014, while K.D.V. (“Mother”) was
married to K.T.M. No father is identified on the birth certificate, and K.T.M.
denied paternity. Allegheny County Office of Children, Youth and Families
(“CYF”) became aware of the family five months later, when Mother, who
has an extensive criminal record, was involved in a series of incidents in
downtown Pittsburgh. Specifically, on March 15, 2015, T.R.C. fell out of her
baby carriage and became lodged in a revolving door. Mother was
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1
The child’s mother, K.D.V., died on May 1, 2017, two days prior to the
evidentiary hearing.
* Former Justice specially assigned to the Superior Court.
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intoxicated, and after T.R.C. was extricated from the door, Mother returned
the infant to the stroller without securing her. Shortly thereafter, T.R.C. was
thrown from the stroller a second time while Mother was crossing a busy
street.2 T.R.C. sustained a bruise on the left side of her face and abrasions
on her forehead, and she was admitted to Children’s Hospital of Pittsburgh
for observation. CYF obtained emergency custody the following day, and
placed T.R.C. in foster care upon her discharge from the hospital. She has
remained in the agency’s custody since that date. CYF initially placed T.R.C
in kinship care with her maternal grandmother, but during August 2016, she
was transferred to her current pre-adoptive foster home.
The juvenile court adjudicated T.R.C. dependent on April 17, 2015.
Approximately two days earlier, the agency discovered that Father, who has
been incarcerated since August 2014 and ineligible for parole until 2024,
claimed to have previously executed an acknowledgment of paternity and
mailed it to the location on the self-addressed envelope enclosed in a
package he received while in jail. However, since CYF had no record of the
document, it requested that Father submit to genetic testing to confirm
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2
As a result of this episode, Mother was charged with aggravated assault,
endangering the welfare of children, simple assault, neglect of a care-
dependent person, recklessly endangering another person, disorderly
conduct, and public drunkenness.
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paternity. Father routinely rejected their entreaties,3 and to add to the
confusion, while Father’s paternity was subsequently confirmed for the
purposes of his child-support obligations, the juvenile court vacated the
domestic-relations order because Mother’s husband had not yet been
genetically excluded from being a potential father. The upshot of the
uncertainty surrounding T.R.C.’s paternity was that CYF effectively
disqualified Father from participating in the dependency proceedings.
During April 2017, Father executed and filed the required acknowledgment
of paternity. Id. at 7.
Meanwhile, on October 27, 2016, CYF filed a petition to terminate
Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a) (1), (2), (5), and
(8), and § 2511(b). CYF provided Father notice of the involuntary
termination proceedings and the orphans’ court appointed counsel for
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3
CYF advised Father that it was required to confirm paternity before it could
forward him information about the dependency proceedings, permit him to
exchange photographs, or schedule visitations between T.R.C. and him or
the paternal grandmother. N.T., 5/3/17, at 24. It sent representatives to
the jail in order to perform genetic testing, but Father refused to participate.
Id. at 80. Father purported to rebuff genetic testing for “religious reasons”
but he was not able to articulate the precise bases of his objections. Id. at
83. During the hearing on the petition to terminate his parental rights, he
proffered the vague explanation, “it's prohibited, like, for a person that's
Muslim to, in so many words, go against the decree of what God gave you.”
Id. Despite the orphans’ court’s prodding inquiry, Father was unable to
explain how his ambiguous statement applied in this scenario. Id. at 84.
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Father.4 During the ensuing hearing, CYF presented the testimony of the
current and former case workers assigned to the family. As it relates to
Father’s instant complaint, both case workers testified about their
interactions with Father during the dependency proceedings and his
persistent refusal to acquiesce to genetic testing. The parties stipulated to
the admission of two psychological reports prepared by the court-appointed
psychologist, Neil D. Rosenblum, Ph.D., who opined, “it is my clinical opinion
that . . . adoption is not only consistent with T.R.C.'s needs and welfare, but
in my clinical opinion vital to her continued developmental growth and the
only way to ensure sustained emotional security for T.R.C.” See CYF Exhibit
2b, Psychological Report, 8/23/16, at 3.
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4
The guardian ad litem, Cynthia Moore, Esquire, represented T.R.C. during
the contested termination proceedings. While Father does not challenge
Attorney Moore’s role in the termination proceedings, we are cognizant of
our Supreme Court’s recent decision in In Re Adoption of L.B.M., 161 A.3d
172 (Pa. 2017), wherein the majority of the justices held that 23 Pa.C.S. §
2313(a) required that counsel be appointed to represent the legal interests
of any child involved in a contested involuntary termination proceeding. The
High Court recognized, however, that Part II–B of the opinion was not
precedential and did not overrule our holding in In re K.M., 53 A.3d 781(Pa.Super. 2012). That decision held that a guardian ad litem who is an
attorney may act as counsel so long as the dual roles do not create a conflict
between the child’s best interest, as determined by the trial court, and the
child’s legal interest, which the High Court defined as synonymous with his
or her preferred outcome.
Instantly, Attorney Moore supported the termination of Father’s parental
rights as serving T.R.C.’s best interests. Our review of the record does not
reveal any conflict between this position and the legal interests of the non-
verbal two-and-one-half-year-old.
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Father testified on his own behalf and presented the testimony of his
mother, L.P. (“Paternal Grandmother”). He maintained that he contacted
CYF at the outset of the dependency proceedings but the agency failed to
exercise reasonable efforts to assist him in reunifying with his daughter.
Stated plainly, Father asserts that he should not be penalized for the CYF’s
inaction.
After considering the evidence, the orphans’ court entered the above-
referenced order terminating Father’s parental rights pursuant to §
2511(a)(2) and (8). The orphans’ court chastised CYF for what it
characterized as the agency’s inexcusable treatment of Father during the
dependency proceedings. It determined that, by denying Father services
and barring his participation in the juvenile court proceedings, CYF undercut
its claim for the involuntary termination of parental rights under §
2511(a)(1) and (a)(5). Tellingly, both of those provisions implicate the
agency’s services, whether directly or indirectly. Thus, as the orphans’ court
accurately highlighted, CYF’s petition failed as to those sections.
However, the orphans’ court noted that CYF’s conduct was irrelevant
under at least one of the grounds for termination the agency asserted under
§ 2511. The court reasoned that, while CYF should have permitted Father
limited access to the dependency proceedings so that he could request the
juvenile court to accept his purported acknowledgement of paternity,
Father’s extensive record of incarceration and the fact that he will not be
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eligible for release for at least seven more years, constitute a repeated
parental incapacity that cannot be remedied as outlined in § 2511(a)(2).
Thus, notwithstanding the fact that CYF neglected to provide Father any
reunification services during the dependency proceedings, the orphans’ court
concluded that the agency established valid grounds to terminate Father’s
parental rights under the Adoption Act.
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
wherein he asserted a single issue, which he reiterates on appeal as follows:
“Whether the trial court erred in determining that CYF has established
grounds to terminate [F]ather’s parental rights pursuant to 23 Pa.C.S. [§]
(a)(2) and (8).” Appellant’s brief at 4.
The crux of Father’s contention is that, by neglecting to invite him to
participate in the juvenile court proceedings, CYF tainted the termination
proceedings before the orphans’ court. Father reasons that the orphans’
court’s acknowledgment of CYF’s inaction was inadequate to dissuade the
agency from erecting similar obstacles in the future that will impede the
participation of similarly situated parents. He opines, “If we have recognized
that parents’ rights are fundamental, as we have, we must also recognize
that these rights must be diligently and scrupulously safeguarded.” Father’s
brief at 12. No relief is due.
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The pertinent scope and standard of review of an order terminating
parental rights is as follows:
Appellate courts are required 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) (cleaned up). It is equally well-
established that, “in termination cases, 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 S.H., 879 A.2d 802, 806
(Pa.Super. 2005).
As noted, supra, the grounds for termination of a parent’s parental
rights are governed by 23 Pa.C.S. § 2511 (a) and (b), which provides in
pertinent part 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:
....
(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
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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.
....
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency, 12 months or more have elapsed from the date
of removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
....
(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.
We need only agree with the orphans’ court’s decision as to one
subsection of 23 Pa.C.S. § 2511(a) and subsection (b) in order to affirm the
termination of parental rights.5 In re B.L.W., 843 A.2d 380, 384 (Pa.Super.
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As Father does not challenge the orphans’ court’s needs-and-welfare
analysis pursuant to § 2511(b), we do not address it. See In re
M.Z.T.M.W., 163 A.3d 462, 466 n.3 (Pa.Super. 2017) (explaining that this
Court need not review orphans’ court’s § 2511(b) analysis sua sponte).
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2004) (en banc). Instantly, the record supports terminating Father’s
parental rights under § 2511(a)(2).6
To terminate parental rights pursuant to § 2511(a)(2), the moving
party must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal caused the child to be without
essential parental care, control or subsistence necessary for his physical or
mental well-being; and (3) the causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825
A.2d 1266, 1272 (Pa.Super. 2003). Parents are required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 340 (Pa.Super. 2002). A
parent's vow to cooperate, after a long period of uncooperativeness
regarding the necessity or availability of services, may properly be rejected
as untimely or disingenuous. Id.As it relates to Father’s chronic incarceration throughout his daughter’s
life, in In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme Court
clarified the case law addressing the effects of incarceration upon a parent’s
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Although the orphans’ court also determined that CYF’s inaction did not
preclude it from finding that the agency established the statutory grounds
outlined in § 2511(a)(8), we need not address the propriety of that
conclusion in light of our reliance on § 2511 (a)(2).
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ability to provide essential care and control pursuant to § 2511(a)(2). After
providing a scholarly review of the relevant case law, the High Court
reasoned,
[W]e hold that incarceration is a factor, and indeed can be a
determinative factor, in a court's conclusion that grounds for
termination exist under § 2511(a)(2) where the repeated and
continued incapacity of a parent due to incarceration has caused
the child to be without essential parental care, control or
subsistence and that the causes of the incapacity cannot or will
not be remedied.
Id. at 828. The Court expounded,
In line with the expressed opinion of a majority of justices
in [In re R.I.S., 36 A.3d 567 (Pa. 2011)], our prior holdings
regarding incapacity, and numerous Superior Court decisions, we
now definitively hold that incarceration, while not a litmus test
for termination, can be determinative of the question of whether
a parent is incapable of providing “essential parental care,
control or subsistence” and the length of the remaining
confinement can be considered as highly relevant to whether
“the conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent,” sufficient
to provide grounds for termination pursuant to 23 Pa.C.S.
§ 2511(a)(2).
Id. at 830. Hence, it is now beyond cavil that a parent’s incarceration is
relevant to the section (a)(2) analysis and, depending on the circumstances
of the case, it may be dispositive of a parent’s ability to provide the
“essential parental care, control or subsistence” that the section
contemplates. See 23 Pa.C.S. § 2511(a)(2). This case presents one such
scenario.
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Father was incarcerated during June 2014, he will not serve his
minimum sentence until 2024., and his actual release could be delayed until
2034, his maximum sentence.7 It is clear from the testimony during the
evidentiary hearing that Father’s incarceration is tantamount to a continued
incapacity that precludes him from providing T.R.C. the essential parental
care, control and subsistence that she requires. Moreover, the incapacity
will continue for at least ten years and could extend until she is a twenty-
year-old woman. Thus, the record sustains the orphans’ court’s finding that
Father’s prolonged imprisonment is the determinative factor under §
2511(a)(2). Plainly, Father’s continued incapacity due to incarceration has
caused T.R.C. to be without essential parental care, control or subsistence
and regardless of any services CYF failed to provide, he cannot remedy the
causes of the incapacity any sooner than 2024.
Next, we address Father’s primary complaint that the agency failed to
exercise reasonable efforts to promote his reunification with T.R.C. due to
his prolonged incarceration. Our High Court addressed this precise issue in
In re D.C.D., 105 A.2d 662 (Pa. 2014), and held that it was improper to
deny a petition for the termination of parental rights solely due to an
agency’s failure to provide a parent reasonable efforts toward reunification.
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At criminal action number CP-02-CR-0011051-2014, Father was sentenced
to a term of ten to twenty years imprisonment for criminal conspiracy to
commit robbery with serious bodily injury.
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Id. Specifically, the Court ruled, “No Pennsylvania or federal provision
requires delaying permanency for a child due to failure of an agency to
provide reasonable services, when a court has otherwise held that grounds
for termination is in the best interests of the child by clear and convincing
evidence.” Id. at 666. It reasoned that such sanction was contrary to the
child’s best interest.
The salient facts of In re D.C.D. are as follows. The agency sought to
terminate the parental rights of an incarcerated father who was not
identified as a birth parent when his daughter was born during 2011. The
father was serving an aggregate term of 7 ¾ to sixteen years imprisonment,
and he was not eligible for parole until 2018. During the ensuing
dependency proceedings, the agency provided the father few services and
offered only one video visitation and one in-person visitation. Recognizing
that the father's parenting incapacity would continue at least until his
daughter would be seven years old and could persist until his maximum
release date, the trial court granted the agency’s petition for involuntary
termination of parental rights pursuant to § 2511(a)(2). The father
appealed and we reversed, finding that the trial court erred in terminating
the father's parental rights when the agency failed to provide him with
reasonable efforts to promote reunification. Our Supreme Court granted
review, reversed our decision, and reinstated the trial court's order
terminating the father's parental rights.
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In reversing our decision, the Supreme Court concluded that the
agency’s “reasonable efforts” were not elements of the statutory grounds to
terminate parental right pursuant to § 2511(a)(2). The High Court
reasoned,
[A] child welfare agency cannot refuse reasonable efforts to an
incarcerated parent and then point to the resulting erosion in the
parental bond created by the agency as justification for
termination of parental rights. The fact that such a scenario can
be articulated, however, does not transform the provision of
reasonable efforts to reunite parents and children into a
requirement for termination. Nothing in the law goes so far, and
the Superior Court erred in so holding.
Further, while we acknowledge that other states have
included reasonable efforts as either an element or merely a
factor in their termination provisions, the Pennsylvania
legislature has not incorporated reasonable efforts into the
language of 23 Pa.C.S. § 2511(a)(2), and it would be improper
and, indeed, unwise for this Court to add such an element to the
statute by judicial fiat. In contrast, we recognize that the
legislature included consideration of the reasonable services
available to the parent in regard to another ground for
termination, subsection 2511(a)(5) (providing for consideration
of whether “the services or assistance reasonably available to
the parent are not likely to remedy the conditions which led to
the removal or placement of the child within a reasonable period
of time”).
Id. at 672-73. Hence, the Supreme Court concluded that this Court erred in
imposing the additional element of reasonable efforts under 23 Pa.C.S. §
2511 (a)(2), and in vacating the termination of parental rights despite the
trial court’s finding that the father was not capable of parenting and could
not remedy the incapacity.
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For identical reasons, we reject Father’s complaint herein. Although
CYF failed to exercise reasonable efforts, a fact that the orphans’ court
highlighted in chastising the agency for its derogation, the lack of
reunification services does not negate the fact that Father’s prolonged
incarceration will continue to prevent him from providing essential parental
care of T.R.C. until 2024 at the earliest. Thus, consistent with our Supreme
Court’s holding in In re D.C.D., supra, we conclude that the orphans’ court
did not err in terminating Father’s parental rights pursuant to § 2511(a)(2)
under the facts of this case.
For all of the foregoing reasons, we affirm the orphans' court's order
terminating Father's parental rights to T.R.C. pursuant to 23 Pa.C.S. §
2511(a)(2) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2018
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