In Re: Adoption of A.E.C., a Minor Appeal of: J.C. ( 2015 )

J-S26001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: A.E.C., MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.C., JR., FATHER
No. 1963 MDA 2014
Appeal from the Decree October 16, 2014
In the Court of Common Pleas of Northumberland County
Orphans' Court at No(s): Adoptee # 18-2014
BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED JUNE 30, 2015
J.C., Jr. (“Father”), appeals from the decree entered October 16, 2014,
in the Court of Common Pleas of Northumberland County, which
involuntarily terminated his parental rights to his minor daughter, A.E.C.
(“Child”).1 We affirm.
The record reveals the relevant factual and procedural history, as
follows. Northumberland County Children and Youth Services (“CYS”)
received a referral regarding the birth of Child in December of 2012. N.T.,
10/8/2014 (Part 2), at 3, 5. The referral related to substance abuse by
Mother, but CYS later was informed that Father also suffered from substance
____________________________________________
1
By separate decree entered that same day, the orphans’ court involuntarily
terminated the parental rights of Child’s mother, L.D. (“Mother”), from which
she filed a notice of appeal. The disposition of Mother’s appeal is by
separate memorandum.
J-S26001-15
abuse issues. Id. at 4. Northumberland County Drug and Alcohol Services
arranged for Father to attend a detox center for 7 days. Id. at 5. Father
was released in January of 2013, and was scheduled for individual outpatient
counseling, but did not attend. Id. CYS initially was unable to make contact
with Father following his release, and Father’s whereabouts were unknown.
Id. at 6. Father did attend a meeting on March 16, 2013, during which he
provided a urine sample. Id. at 20. The sample tested positive for illegal
substances, and Father admitted to heroin use. Id. at 20-21.
Meanwhile, Child was diagnosed with congenital nephrotic syndrome, a
severe kidney condition.2 Id. at 6. Child was discharged from the hospital
in March of 2013, and went to live with Father and Mother under the
supervision of Father’s father and stepmother. Id. at 7. During this time,
CYS was unable to obtain a urine sample from Father in order to perform
additional drug screens. Id. at 7-8. On one occasion, Father claimed that
he was unable to provide a sample and went to sleep. Id. at 4. On another
occasion, Father simply left the home, and Mother reportedly did not know
where he went. Id. at 9-10, 20. Father and Mother also failed to bring
Child to two of her appointments, and were late in bringing Child to a third.
____________________________________________
2
As discussed in greater detail, infra, Child requires constant medical care,
including nightly dialysis treatments. N.T., 10/8/2014 (Part 2), at 61-62.
-2-
J-S26001-15
Id. at 8-9. Ultimately, Child was placed in foster care on May 3, 2013, and
adjudicated dependent on June 6, 2013.3 Id. at 9.
On May 29, 2014, CYS filed a petition to involuntarily terminate
Father’s parental rights to Child.4 A termination hearing was held on
October 8, 2014, during which the orphans’ court heard the testimony of
CYS caseworkers Jennifer Riley and Leslee Maturani. The court heard
further testimony from Child’s foster father, C.Y. (“Foster Father”), and
Father.5 The court entered its decree terminating Father’s parental rights on
October 16, 2014. On November 12, 2014, Father timely filed a notice of
appeal, along with a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Father now presents the following issues for our review:
____________________________________________
3
The date of Child’s adjudication of dependency is not clear from the
certified record on appeal. CYS caseworker, Jennifer Riley, testified that she
believed the adjudication took place on June 5, 2013. N.T., 10/8/2014 (Part
2), at 9. The orphans’ court lists June 6, 2013, as the date of Child’s
adjudication in its opinion pursuant to Pa.R.A.P. 1925(a).
4
In its opinion pursuant to Pa.R.A.P. 1925(a), the orphans’ court states that
CYS filed its termination petition on June 3, 2014. However, the petition is
stamped as having been filed on May 29, 2014. On June 3, 2014, the court
entered an order scheduling the termination hearing, and issued notice of
the hearing.
5
The termination hearing was split into two parts. CYS presented its
evidence with respect to Mother during the first part of the hearing, and then
presented its evidence with respect to Father during the second part.
-3-
J-S26001-15
I. Did the [orphans’] court abuse its discretion when determining
that [CYS] presented clear and convincing evidence to support
grounds for involuntary termination of [Father’s] parental rights?
II. Did the [orphans’] court abuse its discretion in determining
that the best interests of the child would be served by
terminating [Father’s] parental rights?
Father’s brief at 6 (suggested answers and unnecessary capitalization
omitted).
We review this appeal according to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.; R.I.S., 36
A.3d [567,] 572 [(Pa. 2011) (plurality)]. As has been often
stated, an abuse of discretion does not result merely because
the reviewing court might have reached a different conclusion.
Id.; see also Samuel Bassett v. Kia Motors America, Inc.,
[613] Pa. [371], [455,] 34 A.3d 1, 51 (2011); Christianson v.
Ely, 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be
reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.
Id.As we discussed in R.J.T., there are clear reasons for applying
an abuse of discretion standard of review in these cases. We
observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d
at 1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
-4-
J-S26001-15
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 539 Pa. 161, 165, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826–27 (Pa. 2012).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis:
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. 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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S.A.
§ 2511). The burden is on the petitioner to prove by clear and convincing
evidence that the asserted statutory grounds for seeking the termination of
parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super.
2009).
Instantly, the orphans’ court terminated Father’s parental rights
pursuant to Section 2511(a)(1), (2), (5), (8), and (b). This Court need only
agree with any one subsection of 23 Pa.C.S.A. § 2511(a), in addition to
-5-
J-S26001-15
Section 2511(b), in order to affirm the termination of parental rights. In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863
A.2d 1141 (Pa. 2004). Here, we conclude that the orphans’ court properly
terminated Father’s parental rights pursuant to Sections 2511(a)(1) and (b),
which provide 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 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(a)(1) and (b).
With respect to 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
-6-
J-S26001-15
parental duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing
In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). Further,
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights, the
court must engage in three lines of inquiry: (1) the parent’s
explanation for his or her conduct; (2) the post-abandonment
contact between parent and child; and (3) consideration of the
effect of termination of parental rights on the child pursuant to
Section 2511(b).
Id. (quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa.
1998)).
In In re Adoption of S.P., supra, our Supreme Court discussed In
re Adoption of McCray, 331 A.2d 652 (Pa. 1975), a case wherein the
Court considered the issue of the termination of parental rights of
incarcerated persons involving abandonment, which is currently codified at
Section 2511(a)(1). The S.P. Court stated:
Applying in McCray the provision for termination of
parental rights based upon abandonment, now codified as §
2511(a)(1), we noted that a parent “has an affirmative duty to
love, protect and support his child and to make an effort to
maintain communication and association with that child.” Id. at
655. We observed that the father’s incarceration made his
performance of this duty “more difficult.” Id.
In re Adoption of S.P., 47 A.3d at 828. The S.P. Court continued:
[A] parent’s absence and/or failure to support due to
incarceration is not conclusive on the issue of
abandonment. Nevertheless, we are not willing to
completely toll a parent’s responsibilities during his
or her incarceration. Rather, we must inquire
whether the parent has utilized those resources at
his or her command while in prison in continuing a
close relationship with the child. Where the parent
-7-
J-S26001-15
does not exercise reasonable firmness in declining to
yield to obstacles, his other rights may be forfeited.
[McCray] at 655 (footnotes and internal quotation marks
omitted). . . .
In re Adoption of S.P., supra; see also In re B.,N.M., 856 A.2d 847, 855
(Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005) (internal
citations omitted) (stating that a parent does not perform his or her parental
duties by displaying a “merely passive interest in the development of the
child”).
With respect to Section 2511(b), this Court has explained the requisite
analysis as follows:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.”
In addition, we instructed that the trial court must also discern
the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that
bond. Id. However, in cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no
bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
On appeal, Father argues that his parental rights should not have been
terminated because he was able to remedy the issues leading to Child’s
adjudication of dependency. Father’s brief at 15-17. Father asserts, inter
-8-
J-S26001-15
alia, that he obtained drug treatment and endeavored to maintain a
relationship with Child. Id. Father further emphasizes Child’s tender age,
and contends that he should be given the opportunity to learn how to care
for Child, and to establish a bond with her. Id. at 19-20.
In its opinion pursuant to Pa.R.A.P. 1925(a), the orphans’ court found
as follows:
The Petition for Termination of Parental Rights was filed on
June 3, 2014. The six months immediately preceding this date
correspond with a time period during which [] Father was either
incarcerated in the Union County Prison, living out of state, or
living in a halfway house in Philadelphia. [] Father provided no
housing, financial support, or medical care, for . . . Child during
this time period. He was not employed, nor did he have
independent transportation. He attended one supervised visit on
January 31, 2014, after his release from incarceration. [] Father
did not request visits while in Union County Prison. [] Father did
send three letters to . . . Child, but did so only after prompted by
a[] [CYS] caseworker. The letters all occur during a short period
of time between November 26, 2013 and December 20, 2013,
with no correspondence occurring after that brief window.
During this time period . . . [C]hild was hospitalized
several times and required daily medical care while out of the
hospital. [] Father did not even attempt to attend medical
training to learn how to address . . . Child’s medical concerns
(despite having been court-ordered to do so), let alone actually
provide any medical support or care for . . . Child. This inaction
on the part of . . . Father points to both a settled purpose of
relinquishment and a failure to perform parental duties during
the relevant six month period.
Further, an Aggravated Circumstances Order was entered
on July 18, 2014, citing the failure of both [] Father and []
Mother to maintain substantial and continuing contact with . . .
Child for a period of six months. During much of this time
period, . . . Father’s whereabouts were unknown, as he failed to
maintain contact with [CYS].
-9-
J-S26001-15
Orphans Court Opinion, 12/6/2014, at 5-6 (citations to the record omitted).
The testimonial evidence supports the court’s findings, as follows.
CYS caseworker, Jennifer Riley, testified concerning the circumstances
leading up to Child’s placement in foster care, discussed supra. N.T.,
10/8/2014 (Part 2), at 3-10. Shortly after Child’s placement on May 3,
2013, Ms. Riley discovered that Father had moved to New Jersey. Id. at 9,
12-13. Father was incarcerated for retail theft the day after he moved. Id.
at 13. Ms. Riley recalled that her only contact with Father after that date
was a letter she received in June or July of 2013. Id. at 13, 15. Ms. Riley
believed that Father was incarcerated in New Jersey for “several months”
before being transferred to a facility in Union County. Id. at 14. Father did
not request visitation with Child from Ms. Riley while incarcerated. Id.
Ms. Leslee Maturani testified that she took over as Child’s caseworker
in late October or early November of 2013, while Father remained
incarcerated in Union County Prison. Id. at 26-27. During Father’s
incarceration, he sent Ms. Maturani several letters to be given to Child. Id.
at 27, 30-31. Specifically, these letters were received on November 26,
2013, December 16, 2013, and December 20, 2013. Id. Ms. Maturani
noted that she sent Father a letter and pamphlet on December 2, 2013,
explaining, inter alia, that he could send letters to Child. Id. at 38-39, 41.
Ms. Maturani agreed that Father may have sent the letters because he was
encouraged to do so by her documentation. Id. at 42, 51. Following
- 10 -
J-S26001-15
Father’s release from incarceration, he did not have employment, nor did he
have independent transportation. Id. at 27-28.
Ms. Maturani noted that she first met Father during a supervised visit
at CYS on January 31, 2014. Id. at 27. That was the only visit between
Father and Child that she supervised during her assignment to this case. Id.
at 29. Father failed to attend a permanency review hearing on February 6,
2014, reportedly to attend a drug and alcohol evaluation. Id. at 32-33.
While Father attended a custody hearing pertaining to a different child on
February 10, 2014, he failed to appear for a family center intake scheduled
later that day. Id. at 33. Ms. Maturani next spoke to Father on February
24, 2014, and April 2, 2014. Id. at 34-35. Father did not request a visit
with Child on either date. Id.
Ms. Maturani further testified that she learned in April or May of 2014
that Father again had moved to New Jersey. Id. at 35. On May 9, 2014,
Father contacted Ms. Maturani and told her that he was moving from New
Jersey to Solutions House in Philadelphia, and requested a visit with Child.
Id. at 35-36. Ms. Maturani informed Father that a visit could be arranged if
Father returned to the Northumberland County area. Id. at 36. Father did
not request any visits with Child after that date. Id. at 37.
Ms. Maturani explained that she last spoke with Father on June 26,
2014. Id. at 29. During that conversation, Father requested, inter alia, that
Child’s case be transferred to Philadelphia, and that she be placed with
- 11 -
J-S26001-15
Father’s mother. Id. Ms. Maturani informed Father that cases typically are
not transferred, and that his mother could contact her to discuss a home
study. Id. at 29-30, 36-37. Finally, Ms. Maturani noted that aggravated
circumstances were found as to Father on July 17, 2014. Id. at 53-54.
Father participated in the aggravated circumstances hearing by phone. 6 Id.
at 50, 53.
Father testified that he began residing in Solutions House on
approximately May 13, 2014, and that he moved to his mother’s home in
New Jersey about three weeks prior to the termination hearing. Id. at 72-
74. Father admitted that he never told CYS that he moved in with his
mother because “I’ve just been busy I guess.” Id. at 88. Father described
Solutions House as a “sober living facility” where he was subject to drug
tests and had the opportunity to attend counseling, inter alia. Id. at 73, 90.
Prior to living at Solutions House, Father received 7 days of inpatient
rehabilitation treatment at White Deer Run. Id. at 74.
Father further testified that he is done with treatment, and that he has
been clean since May 6, 2014. Id. at 75-76. Since being discharged from
treatment, Father stated that he has been working, trying to pay his bills
____________________________________________
6
Foster Father testified that he met Father once, about two weeks after he
started taking care of Child in January of 2014, but that he has not spoken
with Father since that time. N.T., 10/8/2014 (Part 2), at 60, 63. Foster
Father also recalled that he received a Christmas card for Child from Father,
which he placed in Child’s room. Id. at 65-66.
- 12 -
J-S26001-15
and “keep up on my fines and everything,” and trying to get his driver’s
license back. Id. at 79-80. According to Father, he did not participate in
Child’s life prior to residing at Solutions House because he was trying to
focus on his drug issues. Id. at 78, 82. Father indicated that he received
some training with respect to Child’s medical care prior to Child’s placement
in May of 2013, but that “[a] lot of things have changed with her . . . .” Id.
at 94. Father admitted that he currently is not prepared to care for Child,
but stated, “I would like to try to pursue that.” Id. at 85, 97.
Thus, the testimonial evidence demonstrates that Father refused or
failed to perform parental duties for a period of at least six months prior to
the filing of the petition to terminate his parental rights on May 29, 2014.
During the beginning of the relevant six-month period, Father sent Child
letters and visited with Child once on January 31, 2014. However, following
this visit, Father failed almost entirely to involve himself in Child’s life.
Father did not request another visit with Child until May of 2014, at which
time he was living in Philadelphia. When Father was informed that he would
have to travel in order to visit with Child, he failed to do so. Moreover,
Father has never completed the necessary medical training that he would
need to care for Child. Father’s actions demonstrate a “merely passive
interest” in Child, at best. B.,N.M., 856 A.2d at 855. As such, Father’s
conduct warrants termination pursuant to Section 2511(a)(1).
- 13 -
J-S26001-15
Having determined that the orphans’ court properly terminated
Father’s parental rights pursuant to Section 2511(a)(1), we now review the
order pursuant to Section 2511(b). The orphans’ court found as follows:
Here, the [c]ourt examined the existence and quality of
the bond between [] Father and . . . Child. The Guardian Ad
Litem, in support of her recommendation that the petition for
termination be granted, stated that to the extent that any bond
exists, “…severing the bond with [Father] [] would not have a
detrimental impact on [Child] at all[.] In fact, it would have a
detrimental impact on her if the bond were severed between her
and her foster parents…”
The [c]ourt, after hearing the testimony, concluded, “I
don’t believe there is any emotional bond between you and the
child. You have not seen that child since January 31st of this
year. She was barely a year old. There is no emotional bond
between you and the child that needs to be severed or would be
damaged by her not seeing you. I doubt that she would know
you if she saw you.” There was no evidence of any bond, and in
the absence of such evidence, the [c]ourt reasonably inferred
that no such bond exists between [] Father and . . . Child.
Further, . . . Child has established a firm bond with her foster
family, a family with whom she has lived since January of 2014
and that is willing to provide permanency for . . . Child. The
pairing of . . . Child with this foster family is particularly
fortuitous when one recalls that these foster parents have
attended medical trainings specific to the medical issues
experienced on a daily basis by . . . Child (to say nothing of their
independent medical training as EMTs) and have been steadfast
in their attentiveness and responsiveness to all of her medical
needs since her arrival in their home. The best interests of . . .
Child would be served by termination of [] Father’s parental
rights.
Orphans’ Court Opinion, 12/6/2014, at 9-10 (citations to the record
omitted). Again, the testimonial evidence supports the court’s findings.
Foster Father testified that both he and Child’s foster mother are
paramedics. N.T., 10/8/2014 (Part 2), at 60, 70. Foster Father explained
- 14 -
J-S26001-15
that Child has been residing in his home since January of 2014. Id. at 60.
Child requires medical attention 24 hours per day, and a nurse comes to the
foster home to care for Child during the times that Foster Father and Child’s
foster mother are working. Id. at 61. Child has no kidneys, and undergoes
nightly dialysis treatments. Id. In addition, Child suffers from congestive
heart failure and has experienced two strokes. Id. at 61-62. She is fed
through a feeding tube in her belly, and also suffers from chronic vomiting
and sleep apnea issues. Id. at 61. Foster Father stated that he is willing to
continue providing care for Child in the future. Id. at 64. Where, as here,
the petitioner is an agency it is not necessary that an adoption is presently
contemplated nor that a person with a present intention to adopt exists. 23
Pa.C.S. § 2512(b).
Based upon this evidence, we discern no abuse of discretion by the
orphans’ court in terminating Father’s parental rights pursuant to Section
2511(b). It was reasonable for the court to infer that there is no bond
between Father and Child, given Child’s age and Father’s lack of recent
visits. In re Adoption of J.M., 991 A.2d at 324. In addition, Child’s
extensive medical needs are being met in her current foster placement.
Accordingly, we affirm the decree involuntarily terminating Father’s
parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1) and (b).
- 15 -
J-S26001-15
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2015
- 16 -