In the Int. of: A.N.E.H., Appeal of: E.S. ( 2023 )

J-A28040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.N.E.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: E.S., FATHER :
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: No. 2018 EDA 2022
Appeal from the Decree Entered July 22, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000095-2021
IN THE INTEREST OF: A.N.I.-E.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: E.S., FATHER :
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: No. 2019 EDA 2022
Appeal from the Decree Entered July 22, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000412-2021
BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED MARCH 6, 2023
E.S. (“Father”) appeals from the decrees involuntarily terminating his
parental rights to his daughter, A.N.E.H., born in January of 2016, and his
son, A.N.I.-E.S., born in June of 2019 (collectively, “the Children”). We affirm.
The relevant factual and procedural history of this case is as follows.
The Philadelphia Department of Human Services (“DHS”) opened a case for
in-home services for this family in January 2019, following its validation of a
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report alleging that the Children’s mother was in a car accident with three-
year-old A.N.E.H., who had not been “strapped in” in the car and suffered a
hematoma. See N.T., 7/22/22, at 14. In April 2019, Father was arrested and
charged with murder and related offenses. See id. at 15-16. The next month,
the mother was incarcerated, following a probation violation, and the court
placed A.N.E.H. in the custody of DHS. See id. at 16. A.N.E.H. immediately
began residing in kinship care with her paternal grandmother. See id. The
court adjudicated A.N.E.H. dependent on May 21, 2019.
A.N.I.-E.S. was born with opiates in his system during the mother’s
incarceration. See id. at 17. The court adjudicated A.N.I.-E.S. dependent on
June 24, 2019. The court placed A.N.I.-E.S. in the protective custody of DHS,
which then placed him with his paternal cousin. See id. at 17-18. In
September 2019, A.N.I.-E.S. began residing in kinship care with A.N.E.H. and
their paternal grandmother. See id. at 18.
The Community Umbrella Agency (“CUA”) established single case plan
objectives for Father, to be completed during his incarceration, with the goal
being reunification. The objectives included participating in a parenting
program, mental health and drug and alcohol services, and visitation with the
Children. See id. at 20. CUA case managers visited Father in prison and
provided him with his permanency objectives. See id. at 19. With respect to
visitation, the court ordered one hour in-person visits with the Children at the
prison. See id. at 20. The parties agreed to switch from in-person to virtual
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and/or telephone visits “due to the [C]hildren being upset during” prison visits.
Id. Father had daily contact by telephone or video with the Children residing
in kinship care with their paternal grandmother. See id. at 30-31. However,
Father ultimately complied with only one objective while his criminal charges
were pending, namely, phone/virtual visitation.
DHS filed a petition for the involuntary termination of Father’s parental
rights to A.N.E.H. on February 19, 2021, and A.N.I.-E.S. on July 22, 2021.1
The trial court held an evidentiary hearing on July 22, 2022, during which DHS
presented the testimony of Jessica Estevez, a CUA case manager. Father
testified on his own behalf from prison via videoconferencing.2 By the time of
the subject proceeding, A.N.E.H. was six years old and had been in placement
for more than three years. A.N.I.-E.S. was three years old and had been in
placement his entire life. As noted above, Father complied with just one of
his objectives. The record is unclear as to whether any of these programs
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1 DHS also petitioned for the involuntary termination of the parental rights of
the Children’s mother. The trial court held the petition with respect to the
Children’s mother in abeyance. See id. at 11-12. There is no indication in
the record that the mother’s parental rights have been terminated.
2 The Children, then ages six and three, were represented by separate legal
and best interests counsel in accordance with 23 Pa.C.S.A. § 2313(a). See
In re K.M.G., 240 A.3d 1218, 1235 (Pa. 2020) (holding that appellate courts
“should engage in sua sponte review to determine if [trial] courts have
appointed counsel to represent the legal interests of children in contested
termination proceedings, in compliance with [s]ubsection 2313(a)”). Both
legal and best interests counsel agreed that Father’s parental rights should be
terminated. See, e.g., N.T., 7/22/22, at 37-38.
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were discontinued following advent of the COVID-19 pandemic, and if so, for
how long. See, e.g., N.T., 7/22/22, at 29-30 (Ms. Estevez testifying that she
was unsure about whether the programs were discontinued, and, if so, when
they restarted). Father, for his part, testified to his belief that the programs
had ceased during the pandemic, but he was unaware whether the programs
had since re-started and were available to him at the prison. See id. at 34.
Father provided no explanation for why he did not engage in and/or complete
the programs prior to the pandemic, nor did he assert that he had taken any
steps to inquire about whether these programs were available post-pandemic.
At the conclusion of the hearing on July 22, 2022, the trial court
involuntarily terminated Father’s parental rights to the Children.3 Father
timely filed notices of appeal and concise statements of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court
consolidated sua sponte. The trial court complied with Rule 1925(a).4
Father raises the following issues for our review:
1. Did the [t]rial judge rule in error that [DHS] me[t] its burden
of proof that Father’s parental rights to [the C]hildren be
terminated[?]
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3With respect to A.N.I.-E.S., the trial court also involuntarily terminated the
parental rights of any unknown father. See N.T., 7/22/22, at 41.
4 On August 23, 2022, the trial court notified this Court, pursuant to Rule
1925(a), that its rationale appears of record at the conclusion of the
evidentiary hearing.
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2. Did the trial judge rule in error that the termination [of]
Father’s rights would best serve the needs and welfare of
the [C]hildren[?]
Father’s Brief at 5.
Our standard of review is as follows:
[I]n cases involving involuntary termination of parental rights[,
our review] is limited to determining whether the trial court’s
determination is supported by competent evidence. When
applying this standard of review, an appellate court must accept
the findings of fact and credibility determinations of the trial court
if they are supported by evidence of record. Where the trial
court’s factual findings are supported by the evidence, an
appellate court may not disturb the trial court’s ruling unless it
has discerned an error of law or abuse of discretion. An abuse of
discretion is found where there is a demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill will. It matters
not that an appellate court might have reached a different
conclusion, as it is well-established that absent an abuse of
discretion, an error of law, or insufficient evidentiary support for
the trial court’s decision, the decree must stand.
In re Adoption of L.A.K., 265 A.3d 580, 591 (Pa. 2021) (internal citations
omitted).
Pennsylvania’s Adoption Act (“the Act”) governs involuntary termination
of parental rights proceedings. See 23 Pa.C.S.A. §§ 2101-2938. Subsection
2511(a) provides grounds for the involuntary termination of parental rights.
If the trial court finds clear and convincing evidence supporting the existence
of one of the grounds for termination set forth in subsection (a), the court
must then consider whether termination would best serve the child under
subsection (b). See id. § 2511(b). This Court need only agree with one of
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the grounds set forth in subsection (a) to affirm, provided subsection (b) is
also satisfied. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004).
Here, the trial court involuntarily terminated Father’s parental rights to
the Children pursuant to section 2511(a)(1), (2), (5), and (b). As we need
only agree with the trial court’s determination as to any one section of
2511(a), we limit our discussion to sections 2511(a)(2) 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:
****
(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 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.
****
(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)(2), (b).
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In his first issue, Father contends that the trial court erred in finding
that grounds existed to terminate his parental rights pursuant to section
2511(a)(2). The grounds for termination of parental rights under section
2511(a)(2) due to parental incapacity are not limited to affirmative
misconduct; those grounds may also include acts of refusal and incapacity to
perform parental duties. See In re S.C., 247 A.3d 1097, 1104 (Pa. Super.
2021). Section 2511(a)(2) “emphasizes the child’s present and future need
for essential parental care, control or subsistence necessary for his physical
or mental well-being,” especially “where disruption of the family has already
occurred and there is no reasonable prospect for reuniting it.” In re Z.P., 994
A.2d 1108, 1117 (Pa. Super. 2010) (internal citation and emphasis omitted).
We have long recognized that a parent is required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.
See In re Adoption of M.A.B., 166 A.3d 434, 443 (Pa. Super. 2017). At a
termination hearing, the trial court may properly reject as untimely or
disingenuous a parent’s vow to follow through on necessary services when the
parent failed to co-operate with the agency or take advantage of available
services during the dependency proceedings. See In re S.C., 247 A.3d at
1105.
In In re Adoption of S.P., our Supreme Court addressed the relevance
of incarceration in termination decisions under section 2511(a)(2), holding,
incarceration is a factor, and indeed can be a determinative factor,
in a court’s conclusion that grounds for termination exist under
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[section] 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.
47 A.3d 817, 828 (Pa. 2012).
Father asserts that the trial court erred in finding grounds for involuntary
termination of his parental rights, given he maintained daily contact with the
Children, though he was unable to complete his other permanency objectives
because “the programs were shut down at the prison” during the COVID-19
pandemic. Father’s Brief at 11-12.
The trial court considered Father’s first issue and determined it lacked
merit. At the conclusion of the hearing, the trial court explained:
The testimony reflects that these children have been in care
for [approximately thirty] months.
****
Father has been incarcerated since the children were placed.
In[-]person visits were attempted, but unfortunately the in[-
]person visits were upsetting the children and had to be switched
to virtual. Single case plan objectives were established to achieve
the goal of reunification.
The testimony reflects that Father was able to complete one
objective of those that were put in place[, i.e., the phone/virtual
visitation]. I find that the circumstances that necessitated
placement have not been alleviated and will not be alleviated in a
reasonable period of time.
N.T., 7/22/22, at 39-40.
Following our review, we discern no abuse of discretion by the trial court
finding that grounds existed to terminate Father’s parental rights pursuant to
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section 2511(a)(2). We note that Father was incarcerated in April of 2019,
which was approximately one year prior to the COVID-19 pandemic. A case
manager visited him in jail and provided him with his single case plan
objectives, including, but not limited to, completing parenting classes, mental
health services, and drug and alcohol services. See id. at 19-20. Ms. Estevez,
the CUA caseworker, testified that while Father started parenting classes at
an unspecified time in prison, he was discharged from the class for fighting.
See id. at 21. Ms. Estevez further testified that Father never engaged mental
health or drug and alcohol services. See id.5 The record thus demonstrates
Father’s repeated and continued incapacity to engage in, or complete, his
objectives during his incarceration. This caused the Children to be without
essential parental care, control or subsistence necessary for their physical or
mental well-being for approximately thirty months. The record further
supports the trial court’s conclusion that Father’s incapacity, neglect, or
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5 As we noted above, the record is unclear as to whether any of these
programs were discontinued following advent of the COVID-19 pandemic, and
if so, for how long. See, e.g., id. at 29-30, 34. However, it was Father’s
responsibility to make diligent efforts toward assuming his parental
responsibilities, and thus, to make reasonable inquiries about whether these
programs, assuming they were discontinued, had resumed. See In re
Adoption of M.A.B., 166 A.3d at 443 (noting that a parent is required to
make diligent efforts towards the reasonably prompt assumption of full
parental responsibilities.). We further note that Father provided no
explanation for why he did not engage in and/or complete the programs prior
to the pandemic or assert that he took any steps post-pandemic to investigate
whether these programs were open.
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refusal cannot or will not be remedied.6 See Interest of K.M.W., 238 A.3d
465, 475 (Pa. Super. 2020) (affirming the trial court’s finding of grounds for
termination under subsection (a)(2) where the intermittently incarcerated
mother “remained non-compliant with court-ordered tri-weekly drug screens,
non-cooperative with the Agency, and had not progressed past supervised
visitation with [the c]hild while [the c]hild remained in placement for over 40
months”); see also In re S.C., 247 A.3d at 1105 (noting that 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); see also In re Adoption of M.A.B., 166 A.3d at 443(providing that “[a] parent has a duty to work towards reunification by
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6 We observe, moreover, that Ms. Estevez opined that Father’s reunification
with the Children is not viable. See N.T., 7/22/22, at 22. Regarding Father’s
release date, Ms. Estevez testified that his murder charges were still pending
at the time of the involuntary termination hearing, which was then
approximately three years after the Children’s placement. Id. at 22. She
further explained, “Father remains incarcerated. We do not know a release
date. And he hasn’t completed any other objectives.” Id. Father confirmed
that he was proceeding to trial on the charges, and that his next court date
was scheduled for November of 2022. See id. at 33-34. The record contains
the docket number for Father’s criminal case, and a search of the publicly
available docket indicates Father was acquitted of his murder charge, but
convicted of hindering apprehension or prosecution, a third-degree felony.
See Docket, CP-51-CR-5410-2019; see also 18 Pa.C.S.A. 5105(a)(1). The
docket also indicates, as of this writing, that Father’s sentencing is scheduled
for March 2023. However, the Children cannot wait for permanency and
stability any longer. See In re Adoption of C.D.R., 111 A.3d 1212, 1220
(Pa. Super. 2015) (stating that this Court cannot and will not subordinate
indefinitely a child’s need for permanency and stability to a parent’s claims of
progress and hope for the future).
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cooperating with the rehabilitative services necessary for him or her to be able
to perform parental duties and responsibilities”).
In his second issue, Father contends that the trial court abused its
discretion by finding that termination of his parental rights was in the
Children’s best interest pursuant to section 2511(b). Regarding the section
2511(b) best interest analysis, this Court has explained:
While a parent’s emotional bond with his or her child is a
major aspect of the subsection 2511(b) best-interest analysis, it
is nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
The mere existence of an emotional bond does not preclude the
termination of parental rights. Rather, the [trial] court must
examine the status of the bond to determine whether its
termination would destroy an existing, necessary and beneficial
relationship. . . ..
In addition to a bond examination, the trial court can equally
emphasize the safety needs of the child, and should also consider
the intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. Additionally, . . . the
trial court should consider the importance of continuity of
relationships and whether any existing parent-child bond can be
severed without detrimental effects on the child.
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (internal citations,
quotations, brackets, and indentation omitted). Furthermore, our Supreme
Court has stated that, “[c]ommon sense dictates that courts considering
termination must also consider whether the children are in a pre-adoptive
home and whether they have a bond with their foster parents.” In re T.S.M.,
71 A.3d 251, 268 (Pa. 2013). In weighing the bond considerations pursuant
to section 2511(b), “courts must keep the ticking clock of childhood ever in
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mind.” Id. at 269. Children “are young for a scant number of years, and we
have an obligation to see to their healthy development quickly. When courts
fail . . . the result, all too often, is catastrophically maladjusted children.” Id.
Father argues the trial court erred in finding pursuant to section 2511(b)
that termination of his parental rights served the best interest of the Children,
since he was maintaining contact with them and they had a relationship. See
Father’s Brief at 16-17. He further maintains A.N.E.H. did not “understand
the ramifications of adoption,” and was therefore unable to express a
preference about the matter. See id. According to Father, DHS was required
to take further steps to explain to A.N.E.H. the adoption process. See id. at
17.
The trial court considered Father’s second issue and concluded it lacked
merit:
[The t]estimony reflects that there is no bond with Father
for either of the [C]hildren . . . no parental bond. For [A.N.I.-
E.S.], [Father] is a voice on the phone. And for [A.N.E.H.], the
testimony reflects that she does acknowledge him as Father, but
there is no parental bond with her either. She refers to the
paternal grandmother as mother. The bond is with the paternal
grandmother.
I find that no irreparable harm would be suffered if parental
rights are terminated. Both children look to their paternal
grandmother to meet their needs, to find love, as well as care.
Security and safety are provided by her. These children need
permanency.
I find it’s in their best interest to be freed for adoption . . ..
N.T., 7/22/22, at 40.
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We conclude the trial court did not abuse its discretion in determining
that terminating Father’s parental rights serves the Children’s developmental,
physical, and emotional needs and welfare pursuant to section 2511(b). While
there is no dispute that Father had daily contact by telephone or video with
the Children residing in kinship care with their paternal grandmother, see id.
at 30-31, Ms. Estevez opined, nevertheless, that no parent-child bond existed
between Father and the Children. See id. at 30. Ms. Estevez described the
interaction between the younger child, A.N.I.-E.S.—then three years old—,
and Father as “the voice that he knows via the phone.” Id. at 23. With
respect to A.N.E.H.—then six years old—, Ms. Estevez testified that she
acknowledges Father as her father, but that A.N.E.H.’s only interaction with
Father is by the telephone, and she does not share a parental bond with him.
Id. Rather, Ms. Estevez testified that both A.N.I.-E.S. and A.N.E.H. share a
parental bond with their paternal grandmother. Id. at 25, 26. Ms. Estevez
testified that the Children’s paternal grandmother is a pre-adoptive resource,
and, because the Children look to her “for love, care, and day to day needs,”
they will not suffer any irreparable harm if Father’s parental rights are
terminated. Id. at 23-24, 26. Further, to the extent Father argues that the
court abused its discretion under section 2511(b) because the CUA caseworker
did not explain the possibility of adoption to A.N.E.H., Father provides no legal
authority to support his claim. In any event, the trial court properly appointed
counsel to represent the Children’s best, and legal, interests pursuant to
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section 2313(a). A.N.E.H.’s guardian ad litem agreed that termination of
Father’s parental rights was in A.N.E.H.’s best interest. See N.T., 7/22/22, at
37-38. Further, while A.N.E.H.’s legal counsel concluded that A.N.E.H. was
unable to comprehend what adoption entailed, and therefore unable to
express a preference, her legal counsel “indicated that she referred to paternal
grandmother as mother.” Id. at 38. Given this evidence, we conclude the
trial court did not abuse its discretion in finding that that the termination of
Father’s parental rights was in the Children’s best interest.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2023
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