Term. of Par. Rights to Y.A.C., Appeal of: M.L.B. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TERMINATION OF PARENTAL RIGHTS : IN THE SUPERIOR COURT OF
TO: Y.A.C., A MINOR : PENNSYLVANIA
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APPEAL OF: M.L.B., FATHER :
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: No. 1330 MDA 2022
Appeal from the Decree Entered August 17, 2022
In the Court of Common Pleas of York County Orphans’ Court at No(s):
2021-0144a
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 3, 2023
M.L.B. (“Father”) appeals from the decree terminating his parental
rights as to his minor child, Y.A.C. (“Child”). We affirm.
A panel of this Court previously summarized the facts as follows:
Child is the son of Father and T.N.C. (Mother), who are not
married. In January 2020, Child came into the custody of
[York County Office of Children, Youth & Families (“CYF”)]
on an emergency basis. The order was based on evidence
which demonstrated that continuation or return of Child to
the home of Mother and Father was not in the best interest
of Child. Child was then placed in foster care, where he
remains with a half-sibling.
At a hearing on January 28, 2020, the court adjudicated
Child dependent and awarded legal and physical custody of
Child to CYF. Father did not attend this hearing and he did
not file an appeal. His whereabouts were unknown to CYF
until May 2020 when he was discovered to be in the York
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* Retired Senior Judge assigned to the Superior Court.
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County prison, where he was being held for charges of
criminal homicide and possession with intent to deliver.
The court held numerous permanency review hearings
between July 2020 and May 2021. Due to Father’s
incarceration, he did not make any progress toward
alleviating the circumstances that resulted in Child being
dependent. His requests for visits and for telephone visits
with Child were denied by the York County Prison. CY[F] also
provided Father with a Family Service Plan relating to Child
which he did not object to until January 2021, wherein he
raised concerns about certain family findings and requested
visitation for the first time. Nevertheless, Child knows
Father and recalls living with him. Father provided no
monetary support or gifts to Child but did send some
clothing items. He also never requested any photographs of
Child.
At some point during the dependency proceedings, Father
submitted a request, through the Interstate Compact for the
Placement of Children (ICPC), to assess his sister as a
possible resource for Child. The sister was located in North
Carolina. The sister traveled to Pennsylvania and met with
Child two times for three hours per visit. The CYF
caseworker stated the visits went “well” with the second
visit being “a little bit more natural and easy going.”
On June 18, 2021, CYF filed a petition for involuntary
termination of both Mother’s and Father’s parental rights
pursuant to 23 Pa.C.S.[A.] § 2511(a)(1), (2), (5), and (8).
The court held a termination hearing on August 31, 2021.
Child, then age six, was represented during the proceeding
by T.L. Kearney, Esquire, whom the court appointed to
represent Child as legal counsel.
At the hearing, CY[F] indicated it was not going move Child
upon approval of the ICPC because it “would like to see th[e]
relationship [with Father’s sister] explored more before [it]
would consider placement in her care.” Moreover, CY[F]
stated while it did receive verbal approval, it never received
an official transmittal with Pennsylvania state approval
regarding Father’s sister because her local ICPC office did
not send the transmittal through the proper channels.
Father requested the court delay its decision pending the
formal outcome of the ICPC process. The court denied his
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request but noted his position – that he desired his sister to
have custody.
That same day, the court then terminated Father’s parental
rights pursuant to 23 Pa.C.S.[A.] § 2511(a)(2), (5), and (8).
The court also found termination will best serve Child’s
developmental, physical, and emotional needs and welfare,
pursuant to 23 Pa.C.S.[A.]§ 2511(b).
In the Int. of Y.A.C., No. 1255 MDA 2021, 2022 WL 907285, unpublished
memorandum at 1-2 (Pa.Super. filed March 29, 2022) (citations and footnote
omitted).
Father appealed. We vacated the termination decree and remanded for
further proceedings because there was no indication on the record that the
court had made the requisite determination that Child’s legal and best
interests did not conflict when it appointed Attorney Kearney to serve as both
Child’s legal counsel and guardian ad litem (“GAL”). Id. at 4. On remand, the
court determined that there was no such conflict and granted the petition to
terminate Father’s parental rights. See Trial Court Order, April 22, 2022, at
3.
Father thereafter filed an appeal of the April 22, 2022 order, docketed
at 777 MDA 2022. We vacated the April 22, 2022 order as a nullity and
quashed the appeal. We determined that the trial court had lacked jurisdiction
because it had entered its April 22, 2022 order before we had remitted the
record after the prior appeal. See Order, June 21, 2022.
The court then on August 17, 2022, after a hearing, again determined
that there was no conflict in Attorney Kearney representing Child’s legal and
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best interests and issued an order granting CYF’s petition for involuntary
termination of Father’s parental rights. Father filed the instant timely appeal.
Father raises the following issue:
Did the trial court commit reversible error [by] involuntarily
terminating the parental rights of the natural father when
the Child’s needs and welfare could have been met by giving
custody to a paternal aunt and preserving the parent/child
relationship?
Father’s Br. at 5.
We review an order involuntarily terminating parental rights for an
abuse of discretion. In re G.M.S., 193 A.3d 395, 399 (Pa.Super. 2018). In
termination cases, we “accept the findings of fact and credibility
determinations of the trial court if they are supported by the record.” In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013) (quoting In re Adoption of S.P., 47
A.3d 817, 826 (Pa. 2012)). “If the factual findings have support in the record,
we then determine if the trial court committed an error of law or abuse of
discretion.” In re Adoption of K.C., 199 A.3d 470, 473 (Pa.Super. 2018).
We will reverse a termination order “only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.” In re Adoption of
S.P., 47 A.3d at 826.
Termination of parental rights is controlled by Section 2511 of the
Adoption Act. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under this
provision, the trial court must engage in a bifurcated analysis prior to
terminating parental rights:
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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.
Id. (citations omitted).
Father does not challenge the court’s determination that sufficient
grounds existed for terminating Father’s parental rights under Section
2511(a). Rather, in his sole issue, Father contends the court erred by
terminating his rights under Section 2511(b) because his sister was
purportedly available to care for Child. Father argues:
[W]hile Father’s incarceration and pending charges caused
him to be unavailable as a resource for the Child, he offered
his sister in North Carolina as a resource for the Child. A
formal investigation under the ICPC was undertaken and
informal approval was had, awaiting only final paperwork for
approval. The Aunt from North Carolina traveled to
Pennsylvania for two visits with the Child, and at least the
second of those went well. Giving custody to the Aunt in
North Car[o]lina until Father could become available to
parent once again could have preserved the unity of this
family.
Father’s Br. at 10.
Under Section 2511(b), the trial court must consider “the
developmental, physical and emotional needs and welfare of the child” to
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determine if termination of parental rights is in the best interest of the child.
See 23 Pa.C.S.A. § 2511(b). This inquiry involves assessment of “[i]ntangibles
such as love, comfort, security, and stability[.]” In re C.M.S., 884 A.2d 1284,
1287 (Pa.Super. 2005). The court must also examine the parent-child bond,
“with utmost attention to the effect on the child of permanently severing that
bond.” Id. However, the “mere existence of an emotional bond does not
preclude the termination of parental rights.” In re N.A.M., 33 A.3d 95, 103
(Pa.Super. 2011). Rather, the trial court must consider whether severing the
bond “would destroy an existing, necessary and beneficial relationship.” Id.(citation omitted). The court must also examine any pre-adoptive home and
any bond between the child and the foster parents. In re T.S.M., 71 A.3d at
268.
Here, Father conflates the issue of termination of his parental rights with
the issue of placement/adoption of Child. The issue of who eventually adopts
Child has no bearing on whether Father’s parental rights were properly
terminated. Indeed, pursuant to Section 2512 of the Adoption Act, an agency
need not aver in its petition to terminate that an adoption is presently
contemplated or that a person with a present intention to adopt exists. 23
Pa.C.S.A. § 2512(b)(3). “Furthermore, no particular adoption plan need be
shown before the trial court is permitted to terminate a parent’s rights. In
fact, the Supreme Court has noted that one of the purposes of the adoption
laws is to allow the agency to proceed with termination proceedings
independently of an adoption.” Monroe Cty. Children and Youth Servs. v.
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Werkheiser, 598 A.2d 313, 316 (Pa.Super. 1991) (citing In re Burns, 379
A.2d 535, 541 (Pa. 1977)). The only issue before the trial court was the
determination of the termination of Father’s parental rights — not the issue of
possible custody of Child to the paternal aunt. The court therefore properly
limited its decision to the termination issue.
The court found that termination of Father’s parental rights was in
Child’s best interests pursuant to Section 2511(b). The record supports the
court’s finding. Child had been in care for 19 months at the time of the
termination hearing on August 31, 2021. N.T. 8/31/21, at 75. There was
evidence that Child’s daily needs were entirely being met by the foster family,
who are a pre-adoptive resource. Id. at 85. Child has required significant
dental care and emotional support, which has been managed exclusively by
the foster parents. Id. at 85-86, 96-97. Child is strongly bonded to his brother,
with whom he lives with at the foster home, and there was testimony that
Child would be detrimentally impacted if he was separated from his brother
and his other siblings. Id. at 54, 90-91. The foster mother testified that she
loves Child and is greatly bonded to him, and Child is stable and thriving in
her care. Id. at 94-96. Further, Child’s counsel and GAL indicated that Child
wants to be adopted by his foster family and fully understands that Father’s
parental rights need to be terminated before adoption could occur. N.T.
8/17/22, at 9.
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We conclude that CYF presented sufficient evidence under Section
2511(b). We see no reasonable basis to disturb the court’s decision that
termination of Father’s parental rights would be in Child's best interests.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/03/2023
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