In the Interest of: C.S. Appeal of: J.D. ( 2019 )

J-S37018-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: J.D., FATHER :
:
:
:
: No. 596 EDA 2019
Appeal from the Decree Entered, January 25, 2019,
in the Court of Common Pleas of Monroe County,
Orphans' Court at No(s): 57 OCA 2018.
BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 23, 2019
J.D. (Father) appeals from the orphan’s court decree that granted the
petition filed by the Monroe County Children and Youth Services (CYS) to
involuntarily terminate his parental rights to son, C.S. (Child), pursuant to the
Adoption Act. See Pa.C.S.A. § 2511(a)(1) and (b).1 After review, we affirm.
The early years of this case are sparsely detailed. Child was born in
April 2012. The family came to the attention of CYS in 2014 and in 2016, but
on both occasions it was determined that Child was not without parental care.
The relevant factual and procedural history is as follows: In April 2017,
however, CYS received a report that Father had sexual contact with Child.
Father maintained that he was teaching Child the difference between a “good
touch and a bad touch.” See N.T., 1/22/19 at 10. These allegations were
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1 The trial court also terminated the rights of N.L (Mother), who did not appeal.
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founded; Father was indicated for sexual abuse and charged with various
sexual offenses.
Meanwhile, in July 2017, Mother brought Child to CYS and stated she
could no longer care for him and requested that he be placed in foster care.
Mother appeared to have unstable mental health. CYS sought to place Child
with maternal grandmother, but she declined because she was already
providing care to Mother’s 11-year-old autistic son. Child was adjudicated
dependent on July 28, 2017. Child has remained in the care of his pre-
adoptive foster parent.
Father eventually entered a plea to endangering the welfare of a child.
For this offense, Father was incarcerated from March 27, 2018 until July 27,
2018. Father maintains that his actions were accidental, unintentional, and
not a sexual assault. The day before Father’s release, CYS petitioned to
terminate Father’s parental rights. Upon his release, Father made an inquiry
to CYS to learn what he needed to do in order to resume visitation with Child.
Ultimately, Father did not complete the steps necessary before he could
resume contact with Child, nor did Father follow up with CYS to determine
what, if anything, he still needed to do.
The court held a hearing on CYS’ termination petition on January 22,
2019.2 Although CYS sought termination under 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), (8) and (b), the court only granted the petition under Section 2511
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2Child was properly represented by counsel pursuant to 23 Pa.C.S.A. §
2313(a).
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(a)(1) and (b). The court also granted CYS’ request to change the goal of the
dependency case from reunification to adoption.
Father filed this timely appeal. He presents for our review the following
issue:
Whether the court erred in finding that CYS provided the
elements of 23 Pa.C.S.A. § 2511(a)(1) and (b) through clear
and convincing evidence.
Father’s Brief at 5.
We begin with our well-settled standard of review:
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 Adoption of A.C., 162 A.3d 1123, 1128 (Pa. Super. 2017) (quoting In
re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 §§ 2101-2938, which requires a bifurcated analysis.
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
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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) (citations omitted).
We have defined clear and convincing evidence as that which 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.” In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (citation
and quotation marks omitted).
Father contends that the court failed to properly consider the efforts he
made to establish visitation with his son and complete all goals in his service
plan both over the life of the case as well as the six months immediately
preceding the filing of the termination petition. Father alleges that CYS
prevented him from establishing contact with his son by failing to make
reasonable efforts to verify or assist with his compliance. Finally, Father
argues CYS failed to present clear and convincing evidence that termination
was in Child’s best interest.
Section 2511(a)(1) provides that a court can terminate parental rights
if, inter alia, the petitioner provides clear and convincing evidence that the
respondent-parent failed to perform parental duties for a period of at least six
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months immediately preceding the filing of the petition. See 23 Pa.C.S.A. §
2511(a)(1).
Although it is the six months immediately preceding the filing of the
petition that is most critical to the analysis, the trial court must consider the
whole history of a given case and not mechanically apply the six-month
statutory provision. In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004)
(citation omitted).
In an analysis under this section, we have acknowledged there is no
simple or easy definition of parental duties. But we have explained:
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 [the child's] physical and
emotional needs.
Id. (Internal citations and quotations omitted).
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The court must examine the individual circumstances of each case and
consider all explanations offered by the parent facing termination of his or her
parental rights, to determine if the evidence, in light of the totality of the
circumstances, clearly warrants the involuntary termination. Id.A parent’s incarceration does not, in itself, provide grounds for the
termination of parental rights. Id. An analysis of an incarceration case
depends upon which provision under section 2511(a) termination is sought.
When a petitioner seeks to terminate an incarcerated parent’s rights
under section 2511(a)(1), we have said a parent's responsibilities are not
tolled during incarceration. Id. The court’s focus is whether the parent
utilized resources available while in prison to maintain a relationship with his
or her child. Id. (citation omitted). An incarcerated parent is expected to
utilize all available resources to foster a continuing close relationship with his
or her children. Id. Where the parent does not exercise reasonable firmness
“in declining to yield to obstacles,” parental rights may be forfeited. In re
Adoption of A.C., 162 A.3d at 1130 (quoting In re Adoption of McCray,
331 A.2d 652, 655 (Pa. 1975)).
Finally, the court must account for an incarcerated parent’s self-imposed
barriers while simultaneously evaluating the parent’s duty to overcome them:
Where a non-custodial parent is facing termination of his or
her parental rights, the court must consider the non-
custodial parent's explanation, if any, for the apparent
neglect, including situations in which a custodial parent has
deliberately created obstacles and has by devious means
erected barriers intended to impede free communication
and regular association between the non-custodial parent
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and his or her child. Although a parent is not required to
perform the impossible, he must act affirmatively to
maintain his relationship with his child, even in difficult
circumstances. A parent has the duty to exert himself, to
take and maintain a place of importance in the child's life.
In re B.,N.M., 856 A.2d at 855-856 (citations omitted).
Instantly, Father created for himself considerable obstacles that
impeded his ability to freely communicate and associate with Child. His
inability to overcome these barriers equated a failure to perform his parental
duties under Section 2511(a).
At the inception of the dependency case in July 2017, the court ordered
Father to comply with offender’s treatment in forensic counseling, and to
engage in a risk assessment while his charges were pending. See N.T.,
1/22/19, at 13. Only after CYS received a recommendation and approval from
counseling providers could visitation between Father and Child occur.
Father apparently engaged in counseling, but in March 2018, Father
pleaded guilty to endangering the welfare of a child. As a part of his
sentencing, CYS received a forensic counseling recommendation. The
recommendation indicated that Father should be referred to sex offender
group treatment; he should abide by all the rules of any treatment program
he enters; he should submit to a crime-specific therapeutic polygraph exam
within two months after beginning his treatment if he continued to deny
assaulting the victim in any manner; and it was recommended that he not
have any unsupervised contact with any minors. Id. at 18. Still, he was
considered low risk for reoffending. Id.
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After four months’ incarceration, Father was released in July 2018.
Critically, Father’s compliance and cooperation with CYS was minimal in the
months following his release. Id. at 24. The CYS caseworkers testified that
in order for Father and Child to resume contact, CYS needed to know from
Father’s therapist that such contact was appropriate. Id. at 25; 30. CYS was
also concerned because Father had a history of being hospitalized for suicidal
ideations. Id. at 40. CYS also never received any information regarding
whether Father submitted to the therapeutic polygraph as a part of his criminal
sentence. Id. at 27. A caseworker explained that Father never called the
agency to question any of the goals or ask about what he needed to do in
order to reunify with Child. Id. While Father initially contacted the agency in
August 2018, he never contacted CYS after mid-September 2018. He did not
provide proof that his therapist approved of contact between Father and Child.
At the time of the hearing, Father had yet to complete all the steps necessary
before he could have contact with Child. Id. at 53.
Father contends that CYS had an obligation to reach out to the therapist
in order to help Father do what he needed to do in order to see Child. Id. at
38. In other words, Father argues CYS did not make reasonable efforts to
facilitate the reunification. This argument is relevant to a court’s consideration
of both grounds for termination and the best interests of the child, but neither
Section 2511(a) or (b) requires a court to consider the reasonable efforts
provided to a parent prior to the termination of parental rights. In Interest
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of H.K., 161 A.3d 331, 337 (Pa. Super. 2017) (citing In re D.C.D., 105 A.3d
662, 672 (Pa. 2014)).
Our Supreme Court has concluded that although
reasonable efforts should be considered and indeed, in the
appropriate case, a trial court could insist upon their
provision, we hold that nothing in the language or purpose
of [42 Pa.C.S.A. § 6351(f)(9) of the Juvenile Act] forbids the
granting of a petition to terminate parental rights, under
Section 2511, as a consequence of the agency’s failure to
provided reasonable efforts to a parent.
In re D.C.D., 105 A.3d at 675.
Here, Father had an affirmative duty to exert himself, employ all
available resources, and use reasonable firmness to maintain a relationship
with Child. We recognize that Father faced atypical difficulties, but they were
all of his own making. Even if we agreed with Father, that CYS was not in a
rush to aid him in his reunification, we cannot say that CYS failed to provide
reasonable efforts. And we certainly cannot conclude that CYS’s actions
barred the court from granting the termination petition. Considering only the
time period following Father’s release, the court apparently determined that
Father was content to do very little while others provided Child with necessary
and vital care. The court found Father failed to perform his parental duties;
this finding was not an abuse of discretion. We conclude that termination was
warranted under the first prong of the requisite analysis.
We turn now to the second prong of the termination analysis. The
barriers to the parent-child relationship – which again, were the result of
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Father’s actions and inactions – also prohibited Father from having a
worthwhile bond with Child. Child had not seen Father since April 2017, or for
approximately 21 months at the time of the termination hearing. Child’s
counsel indicated that Child was bonded to his foster parents and preferred to
stay in their care. He does not ask about Father. Id. at 58. Conversely,
Father offered no testimony or evidence on this portion of the termination
inquiry. In cases where there is no evidence of any bond between the parent
and child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d
753, 762-763 (Pa. Super. 2008). We conclude that the orphans’ court did not
abuse its discretion by concluding that termination best serves Child’s needs
and welfare.
Based on the foregoing, we conclude that the orphans’ court did not
abuse its discretion by involuntarily terminating Father’s parental rights to
Child pursuant to Section 2511(a)(1) and (b). Accordingly, we affirm the
decree of the orphans’ court.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/219
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