In Re: Adopt. of: L.M.H. Appeal of: M.H. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPT. OF: L.M.H. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.H.
Appellant No. 228 MDA 2015
Appeal from the Order Entered January 5, 2015
In the Court of Common Pleas of York County
Orphans' Court at No(s): 2014-0092
BEFORE: BOWES, ALLEN, and LAZARUS, JJ.
MEMORANDUM BY BOWES, J.: FILED JUNE 15, 2015
M.H. (“Father”) appeals from the order entered on January 5, 2015,
wherein the orphans’ court involuntarily terminated his parental rights to his
four-year-old son, L.M.H.1 We affirm.
The first contact between York County Office of Children and Youth
Services (“CYS”) and this family occurred on April 2, 2013, in relation to a
referral alleging a lack of supervision by paternal grandmother
(“Grandmother”), V.H., with whom L.M.H. has resided since C.M.L.
(“Mother”) abandoned the then-two-year-old boy. The child has speech
delays and mild behavioral issues. Although the referral was determined to
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1
On the same date, the trial court terminated the parental rights of L.M.H.’s
mother, C.M.L., who did not appeal that order.
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be unfounded, CYF stayed involved with the family and advocated for the
juvenile court to grant a shelter care order awarding Grandmother physical
custody. The order was awarded, and on June 11, 2013, the juvenile court
adjudicated L.M.H. dependent. CYS was awarded legal custody and
Grandmother retained physical custody. Mother and Father were both
granted weekly two-hour periods of supervised visitation. The initial court-
ordered permanency goal was reunification with parents and the concurrent
goal was placement in kinship foster care. During April 2014, that goal was
changed to adoption.
As it relates to Father, the family service plan (“FSP”) established
several goals and objectives. Father was required to cooperate with CYS
and support agencies, avoid substance abuse, demonstrate mental health,
exhibit an understanding of L.M.H.’s developmental needs, and learn
effective parenting techniques. Additionally, Father was required to provide
for his son’s basic needs. Over the next sixteen months, Father’s
compliance with the permanency plan and his efforts to alleviate the
circumstances that necessitated placement were minimal. Father submitted
to a mental health evaluation during August 2013, wherein he was
diagnosed with, inter alia, sustained remission for alcohol/cannabis use
disorder. Father also completed a drug and alcohol evaluation January 29,
2014, which revealed a substance abuse/dependency issue. Outpatient care
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was recommended but Father failed to comply. Additionally, he failed six of
the twenty-five drug screens that he submitted between June 2013 and July
2014. On nineteen other occasions, the agency that administered the
screens either could not locate Father or Father simply refused to provide a
urine sample. In total, Father passed thirteen of forty-four attempted
screens. By July 2014, that agency closed Father’s case due to its inability
to maintain consistent contact with him.
Father also initiated an in-home parenting program through Justice
Works; however, he was discharged from that course on May 30, 2014,
having only completed approximately one-third of the curriculum. By
October 8, 2014, the trial court had determined that Father was
noncompliant with the permanency plan and observed that he had made no
efforts toward alleviating the underlying circumstances.
Father’s visitation was also inconsistent. He attended five to seven
visitations with L.M.H. between June and October 2013; however, he failed
to attend any visitations between November 2013 and January 2014, and he
attended one visitation each during February and March 2014. Father’s last
visit with L.M.H. occurred on March 4, 2014, approximately nine months
before the evidentiary hearing.
On June 13, 2014, CYS filed a petition for the involuntary termination
of Father’s parental rights to L.M.H. Following a hearing on December 9,
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2014, the orphans’ court terminated Father’s parental rights to L.M.H.
pursuant to 23 Pa.C.S. § 2511(a)(1) and (b).2 This timely appeal ensued.
Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise statement of
errors complained of on appeal simultaneously with his notice of appeal.
Father raises one issue for our review:
Did the Lower Court err as a matter of law and abuse its
discretion by granting the request of Children, Youth and
Families to terminate the parental rights of Father when CYF
presented insufficient evidence to satisfy its burden under 23
Pa.C.S.A. Section 2511(a) and (b) as CYF failed to present
sufficient evidence that Father demonstrated a settled purpose
of relinquishing his parental claim or that he failed to perform
parental rights and further that CYF failed to present sufficient
evidence that termination would be in the best interests of the
child which is required under each subsection requested by CYF?
Father’s brief at 5.
We review the orphans’ court’s order to grant or deny a petition to
involuntarily terminate parental rights for an abuse of discretion. In re
C.W.U., Jr., 33 A.3d 1, 4 (Pa.Super. 2011). “We are limited to determining
whether the decision of the trial court is supported by competent evidence.”
In re R.L.T.M., 860 A.2d 190, 191 (Pa.Super. 2004) (quoting In re C.S.,
761 A.2d 1197, 1199 (Pa.Super. 2000)). However, “[w]e must employ a
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2
The six-month delay between the date CYS filed its petition for termination
of parental rights and the evidentiary hearing was due to the agency’s
inability to locate Mother and Father and perfect service of the petition.
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broad, comprehensive review of the record in order to determine whether
the trial court's decision is supported by competent evidence.” In re
C.W.U., Jr., supra at 4. As the ultimate trier of fact, the trial court is
empowered to make all determinations of credibility, resolve conflicts in the
evidence, and believe all, part, or none of the evidence presented. In re
A.S., 11 A.3d 473, 477 (Pa.Super. 2010). “If competent evidence supports
the trial court's findings, we will affirm even if the record could also support
the opposite result.” Id.
The party petitioning for termination of parental rights “must prove the
statutory criteria for that termination by at least clear and convincing
evidence.” In re T.R., 465 A.2d 642, 644 (Pa. 1983). 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 hesitancy, of the truth of the precise facts in issue.” Matter of
Sylvester, 555 A.2d 1202, 1203–04 (Pa. 1989).
Requests to involuntarily terminate a biological parent’s parental rights
are governed by 23 Pa.C.S. § 2511, 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:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
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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. § 2511.
The test for terminating parental rights consists of two parts. In In re
L.M., 923 A.2d 505, 511 (Pa.Super. 2007), we explained:
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.
Herein, the certified record supports the orphans’ court’s
determination that CYS established the statutory grounds to terminate
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Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). As it
relates to §2511(a)(1), the pertinent inquiry for our review follows:
To satisfy Section 2511(a)(1), the moving party must produce
clear and convincing evidence of conduct sustained for at least
the six months prior to the filing of the termination petition,
which reveals a settled intent to relinquish parental claim to a
child or a refusal or failure to perform parental duties. . . .
Section 2511 does not require that the parent demonstrate both
a settled 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)(1) if the parent either demonstrates a settled purpose
of relinquishing parental claim to a child or fails to perform
parental duties.
In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (quoting Matter of
Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)) (internal
citations omitted). Although it is the six months immediately preceding the
filing of the petition that is the most critical to the analysis, the orphans’
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
(Pa.Super. 2004). Additionally, to the extent that the orphans’ court based
its decision to terminate parental rights pursuant to subsection (a)(1), “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.” In In re C.M.S., 832 A.2d 457, 462 (Pa.Super.
2003), we explained, “A parent is required to exert a sincere and genuine
effort to maintain a parent-child relationship; the parent must use all
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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.”
The crux of Father’s complaint is that he initiated concerted efforts,
prior to the date CYS filed the underlying petition, to maintain contact with
H.M.L. and to address his parental deficiencies. Father highlights that
between June and October 2013, he consistently participated in the
supervised visitations. Father adds that he communicated with his son
informally through Grandmother. The latter interactions occurred by
telephone and unofficial meetings in the community. Father also stresses
that he complied with the requirements to submit to mental health and
substance abuse evaluations but could not afford to initiate the
recommended treatment programs. In sum, Father argues that the
foregoing efforts are sufficient to endure CYS’s contentions that he
demonstrated a settled purpose of relinquishing parental rights or failed to
perform parental duties.3 For the following reasons we disagree.
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3
Father was imprisoned in York County Prison for two days each during
February 2014 and July 2014 and for fifteen days between November 30,
and December 14, 2014. Additionally, he was incarcerated in Texas for
unspecified periods between April and August 2014. Father does not allege
that his periodic incarcerations impeded his ability to maintain a relationship
with his son. Nevertheless, to the extent that Father did invoke his
(Footnote Continued Next Page)
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Instantly, the certified record belies Father’s assertion that he made a
sincere and genuine effort to perform parental duties or preserve his
parental relationship with L.M.H. During the evidentiary hearing, LaShon
Smith, the CYS worker assigned to the family, testified that, during the
relevant six-month period, Father did not perform any parental duties or
provide L.M.H. any gifts or cards. See N.T., 12/9/14, at 51. Moreover, for
the length of CYS’s involvement with the family, Father failed to attend or
participate in any medical appointments, and he never inquired about his
son’s physical, emotional, or developmental wellbeing. Id. at 51-52.
Tellingly, Father did not participate in any of the assessments and
evaluations that L.M.H. underwent in order to qualify for specialized
education and early intervention services to address his speech and
behavioral needs. Id. at 53-54. Indeed, despite the agencies’ services, Ms.
Smith does not believe that Father is in a position to provide for the care,
protection, safety, or development of his son. Id. at 52.
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(Footnote Continued)
incarceration as an excuse for his inaction, we observe that the certified
record confirms that Father failed to exercise reasonable firmness in
declining to yield to the obstacles created by imprisonment. See In re
Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012) (“pursuant to an
abandonment analysis [an incarcerated parent has] a duty to utilize
available resources to continue a relationship with his or her child.”).
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Ms. Smith stated that Father lacks a legal source of income. Id. at 40.
She explained that having a verifiable source of stable income was important
so that CYS could assess Father’s ability to care for L.M.H. if he ever
retained custody of the child. Id. at 41. Additionally, Father’s housing is
unquestionably unstable. Id. at. 38. Father resided at approximately six
different locations since the juvenile court proceedings commenced. Id. at
38-39. He failed to inform CYS of his residences, and during one six-month
period the agency designated him as “missing in action.” Id. at 40. In sum,
Ms. Smith opined that terminating Father’s parental rights would achieve
L.M.H.’s best interests because Father failed to remain involved in his son’s
life and was still unable to provide for the child’s basic parenting needs. Id.
at 54.
In relation to the FSP goals, Ms. Smith indicated that Father
participated in a mental health evaluation but did not initiate the
recommended counseling. Id. at 48. Similarly, Father completed a drug
and alcohol evaluation and met the criteria for substance abuse. However,
he neglected to document that he engaged in the recommended drug and
alcohol counseling. Id. at 49. In fact, since Father declined to execute the
release of his personal information, CYS was unable to monitor his
compliance with any of the recommended treatment regimens. Id. at 48-
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49. Nevertheless, despite Father’s obstructions, CYS never denied him any
services that he requested. Id. at 57.
Concerning visitation, Ms. Smith testified that Father’s attendance at
the two-hour weekly visitation was fairly consistent following the June 2013
adjudication of dependency; however, by Spring 2014, Father’s compliance
with the visitation schedule was abysmal. Id. at 42. He only visited with his
son twice since October 2013 and the last visit occurred on March 4, 2014.
Id. at 41-42. The only other visitation that he attended during that period
was on February 28, a visit that he cut short.
Tara Deane, a family resource specialist with Justice Works, also
testified about Father’s inconsistent visitation. While Ms. Deane was
scheduled to supervise several two-hour visitations scheduled during
February and May 2014, she ultimately supervised only one visitation
between Father and L.M.H. The remaining visitations were either canceled
by Father or he simply failed to attend. Id. at 84-86. Ms. Deane explained
that after Father’s demonstrated non-compliance, the agency suspended its
supervisory services for approximately six weeks with the hope of resuming
visitation when Father recommitted to the process. Id. at 85. Father called
the agency on four occasions during March and April of 2014 to schedule
visitations, but three of those visits were canceled after Father failed to
confirm his attendance at least twenty-four hours beforehand. Id. at 87-88.
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Once it became clear to Justice Works that Father would remain
noncompliant, the agency closed Father’s case permanently during May of
2014. Id. at 85-86.
Jared Daughton, the Justice Works parenting educator who provided
in-home services to Father, testified about Father’s efforts to confront his
deficient parenting skills. Mr. Daughton stated that Father completed only
about one-third of the program before being discharged. Id. at 74. He
cited inconsistent attendance and several missed appointments as reasons
for the discharge. Id. Father missed twelve appointments with Mr.
Daughton and canceled on five other occasions. Id. at 75. Mr. Daughton
explained, “eventually, we missed enough that he would have had to restart
the program in order to successfully complete it[.]” Id. at 74. He observed
that Father’s year-long participation was unusual because the program
normally takes significantly less time to complete. Id. at 77. He added that
the lessons that Father actually covered before the discharge were largely
introductory and that the lessons geared toward implementing an actual
parenting strategy would have come later had Father shown greater
participation. Id at 76-77.
As demonstrated by the foregoing testimony, CYS provided clear and
convincing evidence that Father failed to cultivate a relationship with his son
or perform his parental duties. After a reasonably strong start, during the
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duration of this case, including the six months that are most critical to the
§2511(a)(1) analysis, Father was content to delegate his parental
responsibilities to Grandmother. Despite CYS’s encouragement to avail
himself of all of the services and opportunities that it and Justice Works
provided to him, Father refused to persevere and eventually lost interest in
achieving his FSP goals or maintaining contact with his son. He was
discharged from the parenting program for non-participation, he failed to
follow through with the recommended mental health and substance abuse
counseling, and most importantly, he squandered his visitations with his
young son. Thus, the record sustains the orphans’ court’s conclusion that
CYS proved by clear and convincing evidence the statutory grounds to
terminate Father’s parental rights pursuant to § 2511(a)(1). Stated simply,
Father failed to exercise reasonable firmness in attempting to establish a
parental relationship with L.M.H. or in performing his parental obligations.
Having concluded that the orphans’ court did not err in finding that
CYS satisfied its burden pursuant to 23 Pa.C.S. § 2511(a)(1), we next
review the orphans’ court’s needs and welfare analysis under § 2511(b).
While the Adoption Act does not mandate that the orphans’ court consider
the effect of permanently severing parental bonds, our case law requires it
where a bond exists to some extent. See In re E.M., 620 A.2d 481, 485
(Pa. 1993).
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The extent of the orphans’ court’s bond-effect analysis depends upon
the circumstances of a particular case. In re K.Z.S., 946 A.2d 753, 763
(Pa.Super. 2008). We have emphasized that while a parent’s emotional
bond with his child is a major aspect of the § 2511(b) best-interest analysis,
it is nonetheless only one of many factors to be considered by the orphans’
court when determining what is in the best interest of the child. In re
K.K.R.-S., 958 A.2d 529, 535-536 (Pa.Super. 2008). Indeed, the mere
existence of an emotional bond does not preclude the termination of
parental rights. See In re T.D., 949 A.2d 910 (Pa.Super. 2008) (trial
court’s decision to terminate parental rights was affirmed where court
balanced strong emotional bond against parents’ inability to serve needs of
child).
As we explained in In re K.Z.S., supra at 763 (emphasis omitted),
In addition to a bond examination, the court may equally
emphasize the safety needs of the child under subsection (b),
particularly in cases involving physical or sexual abuse, severe
child neglect or abandonment, or children with special needs.
The trial court should also examine the intangibles such as the
love, comfort, security and stability the child might have with the
foster parent. Another consideration is the importance of
continuity of relationships to the child and whether the parent
child bond, if it exists, can be severed without detrimental
effects on the child. All of these factors can contribute to the
inquiry about the needs and welfare of the child.
See also In re A.S., supra at 483 (orphans’ court can emphasize safety
needs, consider intangibles, such as love, comfort, security, and stability
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child might have with the foster parent, and importance of continuity of
existing relationships).
Herein, the orphans’ court concluded that terminating Father’s
parental rights and freeing L.M.H. for adoption was in the child’s best
interest. The orphans’ court proffered the following needs and welfare
analysis.
Finally, the Court must consider the effect that termination
will have upon the [four-year-old] Child. The Court believes that
termination of parental rights will have no significant effect upon
the Child. . . . Regarding Father, [t]he Court believes that
Child would recognize Father. The Court acknowledges that a
strong bond once existed between Father and the Child,
however, that bond became a playmate bond when Father failed
to maintain consistency in his visitation and failed to maintain a
place of importance in the Child's life. For the last fourteen
months, there have been only two visits wherein Father visited
the Child and had real interaction with the Child. The last of
those visits was more than nine months ago. During this entire
period, paternal grandmother has been caring for the Child daily
and consistently. The Child looks to paternal grandmother for
love, security, safety and basic needs. The bond between the
Child and paternal grandmother is the kind of healthy bond that
should exist between a parent and child.
This Court believes that permanency will best be achieved
by terminating parental rights, and permitting paternal
grandmother to move forward with adoption.
Trial Court Adjudication and Opinion, 1/5/15, at 12-13. In sum, the court
opined,
[N]o real parent-child bond exists in this case. Father has not
been able to consistently provide the Child with the love,
comfort, security or closeness that would normally be evident
between a parent and child. . . . The Child looks to Father as a
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playmate, but looks to paternal grandmother to provide comfort,
safety, security and nurturance. . . . The Court finds that there
would be no significant effect upon the child from the
termination of . . . Father's parental rights. Termination of
parental rights will best meet the needs of the Child and will
permit him to move forward and achieve the permanency that
he deserves.
Id. at 16.
Father argues that CYF failed to demonstrate that terminating parental
rights would not have a detrimental impact upon L.M.H. This contention
relies upon the recognized bond that he shares with his son. In essence,
Father challenges the trial court’s determination that the once-strong
parental bond had diminished so significantly so as to alleviate the effects
that terminating Father's parental rights would have upon L.M.H.
The certified record sustains the orphans’ court’s rationale. During the
hearing, Ms. Smith testified that while L.M.H. knew Father and shared a
strong bond with him when Father had remained engaged in the
reunification process, she has been unable to ascertain the current nature of
the relationship due to Father’s absences. See N.T., 12/9/14, at 46. She
observed, however, that sometimes when Father called on the telephone,
L.M.H. refused to speak with him. Id.
Mr. Daughton supervised approximately four of Father’s visitations
with L.M.H. as part of the parenting program that he administered. Id. at
76. He testified that Father demonstrated a strong bond with the child, but
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sometimes lacked the instinct to determine his son’s needs. Id. at 76, 79.
Noting that the two frequently played together on the floor, he stated that
Father “seemed to be invested in his relationship with [L.M.H.] during those
early visits.” (emphasis added). Id. Similarly, Ms. Deane described the
one interaction that she observed between Father and L.M.H. as playful and
noted that Father chased L.M.H. around the room. Id. at 83.
In contrast to this playful bond, L.M.H. maintains a strong parental
bond with Grandmother, whom he perceives as his primary parental figure.
Id. 45, 46-47. Ms. Smith testified that Grandmother has been the primary
caretaker for the past two years, “He knows that she’s going to maintain his
safety. She provides for him. She shows him love. He identifies
[Grandmother as] the person who protects him.” Id. at 47. Ms. Smith
opined that, of the adults in L.M.H.’s life, he has the strongest parental bond
with Grandmother, and that bond is the most important to cultivate. Id.
She continued, “[L.M.H.] has become accustomed to living with
[G]randmother. . . . He knows [G]randmother [is] his caregiver . . . , and
that’s who he’s been with. Terminating the rights of his parents, he’s not
going to feel an impact because he doesn’t see them at this time now.” Id.
at 56. Overall, Ms. Smith concluded that terminating Father’s parental
rights would permit L.M.H. to continue to reside with Grandmother in a
stable home like a typical four-year old boy. Id. at 56.
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Accordingly, in light of the evidence demonstrating the absence of a
parent-child bond between L.M.H. and Father and the favorable relationship
that L.M.H. shares with Grandmother, our review of the certified record
supports the orphans’ court’s determination that terminating Father’s
parental rights best satisfied L.M.H.’s developmental, physical, and
emotional needs and welfare.
For all of the foregoing reasons, we affirm the orphans’ court order
terminating Father’s parental rights to L.M.H. pursuant to § 2511(a) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2015
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