In Re: Adoption of: J.G. Appeal of: J.G. ( 2017 )

J-S26025-17 & J-S26026-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: J.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: J.G. :
:
:
: No. 1979 MDA 2016
Appeal from the Decree Entered November 9, 2016,
In the Court of Common Pleas of Cumberland County,
Orphans’ Court Division at No(s) 91 ADOPT 2016
IN RE: ADOPTION OF: A.G. :
:
:
APPEAL OF: J.G. :
:
:
: No. 2012 MDA 2016
Appeal from the Decree Entered November 9, 2016,
In the Court of Common Pleas of Cumberland County,
Orphans’ Court Division at No(s): 090 ADOPT-2016
IN THE ADOPTION OF: A.G., : IN THE SUPERIOR COURT OF
A MINOR, : PENNSYLVANIA
:
:
APPEAL OF: J.G. :
:
:
: No. 1989 MDA 2016
Appeal from the Order Entered November 9, 2016,
In the Court of Common Pleas of Cumberland County,
Juvenile Division, at No(s): CP-21-DP-0000164-2015
J-S26025-17 & J-S26026-17
IN THE ADOPTION OF: J.G., : IN THE SUPERIOR COURT OF
A MINOR, : PENNSYLVANIA
:
:
APPEAL OF: J.G. :
:
: No. 1990 MDA 2016
Appeal from the Order Entered November 9, 2016,
In the Court of Common Pleas of Cumberland County,
Juvenile Division, at No(s): CP-21-DP-0000051-2011
BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*
MEMORANDUM BY DUBOW, J.: FILED MAY 25, 2017
In these consolidated appeals, J.G., (“Father”) challenges the Orders
changing the permanency goal from reunification to adoption, and the final
Decrees involuntarily terminating his parental rights to his son, J.G. (born
February 2010), and his daughter, A.G., (born August 2014), pursuant to
the Adoption Act, 23 Pa.C.S. § 2511(a) and (b).1 We affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
Father and A.B. (“Mother”) are the natural parents of both children.
Cumberland County Children and Youth (“the Agency”) first became involved
with J.G. in 2011 due to his parents’ ongoing criminal activity and Mother’s
heroin addiction. On May 16, 2011, the court adjudicated J.G. dependent,
and the court granted legal and physical custody to paternal grandmother.
*
Former Justice specially assigned to the Superior Court.
1
Mother voluntarily relinquished her parental rights to the children and is
not part of this Appeal.
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Both Mother and Father continued to have legal and drug difficulties.
When A.G. was born in August 2014, she tested positive for Subutext.
Franklin County Children and Youth Services implemented a safety plan with
Mother, which required her and A.G. to live with the maternal grandmother
(“Maternal Grandmother”).
At some point, Father began living with paternal grandmother and J.G.
On September 18, 2014, the Agency learned that Father had overdosed on
Percocet, cocaine and heroin. He was hospitalized, but left the next day
against medical advice.
CYS filed a dependency petition and the trial court held a shelter care
hearing on September 22, 2014, and an adjudicatory hearing on October 2,
2014. J.G. was not found to be dependent, and the trial court granted
physical custody to Mother, who was still residing under supervision with
Maternal Grandmother and A.G. in Franklin County. Mother and Father
shared legal custody and Father was to have supervised visitation.
On October 23, 2014, Father was arrested after a domestic violence
incident against Mother and involving A.G. The trial court granted Mother
primary and physical custody of the children. Father was charged with
unlawful restraint of a minor and related charges and criminal mischief.
Subsequently, he pled guilty. The parents and children were reunified as a
family in December 2014.
Father was incarcerated from March 2015 to May 21, 2015, for a
criminal charge of Endangering the Welfare of a Child.
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On May 11, 2015, Mother was in a serious car accident. Due to the
unavailability of their parents, CYS placed the children in the care of
Maternal Grandmother and implemented a safety plan in which neither
parent was to have any unsupervised contact with any child.
In late July 2015, the Agency received a report that both parents were
using heroin in front of the children and Mother was charged with drug
possession. On August 31, 2015, the trial court adjudicated the children
dependent, and placed them in the kinship care of Maternal Grandmother
and her husband (“Maternal Grandparents”). On November 30, 2015,
Maternal Grandparents became formal kinship foster parents of the children.
The Family Service Plan created shortly after the children’s
adjudication contained the following goals for Father to be reunited with the
children: 1) obtain stable housing; 2) obtain stable employment; 3)
improve parenting education/skills; 4) visitation with the children; 5) secure
safety from domestic violence; and 6) remain drug free.
On October 27, 2016, the Agency filed a petition for involuntary
termination of parental rights (“TPR Petition”), as to both Mother and Father,
pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b). At the same time, in
the dependency action, the Agency requested a change in the permanency
goal from reunification to adoption.
The trial court held an evidentiary hearing on November 9, 2016 on
the TPR Petition and the request to change the children’s goal to adoption
(“TPR Hearing”). At the beginning of the hearing, Mother voluntarily
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relinquished her parental rights. See N.T., 11/9/16, at 4-8. The Agency
presented the testimony of a counselor for J.G., and two caseworkers who
worked with the family. In addition, the Agency presented the Maternal
Grandmother’s testimony, and moved for the admission of multiple exhibits
into evidence. Father presented testimony from a social worker who had
observed his prison visitations with the children, and he testified on his own
behalf.
The trial court summarized its pertinent factual findings as follows:
Father’s ability to be a meaningful part of the children’s
lives has been marred by frequent imprisonment and drug
use. He was re-incarcerated shortly following the
adjudication of dependency. He remained in jail from
October 15, 2015 to December 4, 2015. He was on the
street for less than a month before he was imprisoned
again from December 15, 2015 to July 19, 2016. Father’s
extensive history of incarcerations can be linked directly to
his drug use.
In addition, his drug use when not in jail has resulted in
limited contact with his children. Aside from visits in
prison, he saw the children only once between March and
December of 2015. In fact, his only consistent visitation
with the children has taken place during his incarcerations
through the prison visitation program. After he was
released from prison on July 19, 2016, he did not begin
visiting with the children for two months. He missed two
of nine weekly visits thereafter.
Father has failed to make any meaningful progress
toward reunifying with the children. He did not obtain the
recommended parenting evaluation until two days prior to
the [TPR Hearing]. In addition, he had done nothing to
address his domestic violence toward issues. Furthermore,
the domestic violence toward Mother continued after his
release from prison in July of 2016.
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The children are thriving in the home of their
grandparents, which they share with two cousins, ages
three and one. All the children get along like brothers and
sisters. However, J.G. has experienced regressive
behavior after visits with Father. This behavior includes
“clinginess and increased opposition.” He has had
difficulty with transitions including his parents entering and
leaving prison, and transitioning from visits with Father.
Trial Court Opinion, 1/13/17, at 2-3 (footnotes omitted).
At the close of this hearing, the trial court entered its order changing
the goal for both children to adoption, and a final decree terminating
Father’s parental rights pursuant to Sections 2511(a)(2) and 2511(b).
ISSUES ON APPEAL
Father raises the following issues on appeal:
1. Whether the trial court erred in changing the goal on
Father’s permanency plan to adoption since Father had
made substantial progress on the permanency plan
goals that had been established for him?
2. Whether the trial court erred in changing the goal on
Father’s permanency plan to adoption since the reasons
that had led to the children’s placement with their
maternal grandparents had been remedied?
3. Whether the trial court erred in determining that
termination of Father’s parental rights to the children
was in the children’s best interest?
Father’s Brief at 4.
Because evidence regarding the permanency plan goal change and
TPR petitions substantially overlap, and the legal standards to be applied are
the same, we will address Father’s issues together. See In the Interest of
R.J.T., 9 A.3d 1179, 1191 n.14 (noting that courts should combined
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hearings on these two petitions since the evidence substantially overlaps and
allows for faster permanency for the child).
LEGAL ANALYSIS
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.” In re Adoption of
S.P., 47 A.3d 817, 826 (Pa. 2012). “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. We may reverse a decision based on an abuse
of discretion only upon demonstration of “manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. We may not reverse, however,
merely because the record would support a different result.” Id. at 827.
We give great deference to the trial court that has first-hand
observations of the parties spanning multiple hearings. In re T.S.M., 71
A.3d 251, 267 (Pa. 2013). The Orphans’ Court is free to believe all, part, or
none of the evidence presented and is likewise free to make all credibility
determinations and resolve conflicts in the evidence. In re M.G., 855 A.2d
68, 73-74 (Pa. Super. 2004). In addition, in order to affirm the termination
of parental rights, this Court need only agree with any one subsection under
Section 2511(a). See In re B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004)
(en banc).
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The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that “[t]he standard of 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 hesitance, of
the truth of the precise facts in issue.” Id. (citations omitted).
Termination Pursuant to 2511(a)(2)
Under Section 2511(a)(2), “the petitioner for involuntary termination
must prove (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) [that] such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) [that] the
causes of the incapacity, abuse, neglect or refusal cannot or will not be
remedied.” In re A.S., 11 A.3d 472, 479 (Pa. Super. 2010) (citation
omitted).
This Court has defined “parental duties” in general as the obligation to
affirmatively and consistently provide safety, security and stability for the
child:
There is no simple or easy definition of parental duties.
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. This affirmative duty … requires continuing
interest in the child and a genuine effort to maintain
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communication and association with the child. Because a
child needs more than a benefactor, parental duty requires
that a parent exert himself to take and maintain a place of
importance in the child’s life.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations and
paragraph breaks omitted). “Where the parent does not exercise reasonable
firmness in declining to yield to obstacles, his parental rights may be
forfeited.” A.S., 11 A.3d at 481 (citation omitted).
And most importantly, “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 her physical and
emotional needs.” In re B., N.M., supra, at 855 (citations omitted).
In the instant case, the Orphans’ Court properly concluded that the
Agency presented clear and convincing evidence to establish all three
elements of Section 2511(a)(2). It reasoned:
Father’s repeated criminal activity, drug use, domestic
violence, and lack of interest in his children have
consistently caused them to be without essential parental
care. They have had to rely on their grandparents for their
physical and emotional wellbeing for most of their lives.
The only time Father made any real effort to be a part of
their lives over the past two years was when he was
incarcerated. The children were brought to him in prison
as part of the Agency’s prison visitation program. When
not in prison, he made little effort to see or support his
children.
[Father] has failed to remedy the conditions which have
led to his failure to perform his parental duties. He is still
not in a position to provide for their care. He does not
have appropriate housing. Nor has he successfully
addressed the issues that led to placement, including his
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drug addiction, his domestic violence, or his parenting
deficits.
Finally, we cannot foresee a time when the causes of
his refusal and/or incapacity to parent will be remedied.
His involvement with the Agency dates back to 2011. He
has not made any progress addressing the issues which
led to the involvement. Nor did we see any reason to
believe that any real progress will be made no matter how
much additional time is given.
Trial Court Opinion, 1/13/17, at 5-6 (footnotes omitted).
Father argues that the trial court erred in terminating his parental
rights and changing the goal to adoption with regard to both J.G. and A.G.
because he “had made substantial progress on the goals that have been
established for him[.]” Father’s Brief at 8. Father then reiterates his TPR
Hearing testimony that “he felt that he could meet all the goals on his safety
plan if he were given an additional thirty days.” Id. at 11.
Our review of the record supports the trial court’s conclusion regarding
Father’s progress in meeting his goals. It was for the trial court, as a matter
of credibility, to determine the weight to be given Father’s attempts at
remediation. In re M.G., supra. Moreover, our review of the record
supports the trial court’s conclusion that Father’s testimony that he could
meet his goals if the proceedings were delayed for another month to be
unrealistic. Therefore, the record supports that trial court’s conclusion that
the Agency has proven by clear and convincing evidence that termination of
his parental rights to J.G. and A.G. is justified pursuant to Section
2511(a)(2) of the Adoption Act.
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Termination Pursuant to Section 2511(b)
With respect to Section 2511(b), our analysis shifts focus from
parental actions in fulfilling parental duties to the effect that terminating the
parental bond will have on the child. Section 2511(b) “focuses on whether
termination of parental rights would best serve the developmental, physical,
and emotional needs and welfare of the child.” In re: Adoption of J.M.,
991 A.2d 321, 324 (Pa. Super. 2010).
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court
found that “intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.” In addition,
the orphans’ 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.In cases where there is no evidence of meaningful contact between a
parent and a child, it is reasonable to infer that no bond exists. In re
K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008). Thus, the extent of the
bond-effect analysis necessarily depends on the circumstances of the
particular case. Id. at 763.
In the instant case, the trial court determined that the evidence
presented at the TPR hearing established that termination of Father’s
parental rights was in the best interests of the children. It stated:
J.G.[,] now six years old, is enjoying the first stable home
he’s known in his short life. His therapist describes the
grandparents as very caring, as well as a very positive and
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consistent presence in his life. A.G. is in the only home
she has every really known. The children are loved and
bonded with their grandparents. The termination of
Father’s parental rights will enable the grandparents to
adopt the children and give them the permanency they
deserve. Furthermore, because of his lack of significant
meaningful contact with the children, we are satisfied that
they will not suffer any adverse effects from the
termination of his parental rights.
Trial Court Opinion, 1/13/17, at 6 (footnote omitted).
Father cites to his own testimony and that from the social worker who
supervised his prison visits with the children to assert that he enjoys a
strong bond with the children and that “J.G. would be devastated by the
termination of his parental rights.” Father’s Brief at 11. Once again, as a
matter of credibility, the trial court did not find this testimony persuasive.
Father also argues that “[n]o bonding assessment was performed to
determine the [effect] that the termination of parental rights would have on
these children who had a good relationship with [him].” Id. at 13.
Pennsylvania case law, however, has determined that Section 2511(b) does
not require a bonding analysis. See generally, In the Matter of K.K.R.-
S., 958 A.2d 529 (Pa. Super. 2008).
Thus, we conclude that the trial court did not abuse its discretion in
concluding that the Agency presented clear and convincing evidence that
termination of Father’s parental rights is in the best interests of J.G. and
A.G.
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GOAL CHANGE
Finally, given the above, we conclude that the trial court did not err in
finding that adoption is in the best interests of the Children and in changing
the goal to adoption. See R.J.T., 9 A.3d at 1183-84 (noting that when
considering a goal change motion the court looks to the best interests of the
child rather than those of the child’s parents; the Agency must establish that
it requested goal change option is best suited to the child’s safety,
protection, and physical, mental, and emotional welfare).
CONCLUSION
In sum, our review of the record supports the trial court’s order
concluding that that the Agency met its statutory burden regarding the
permanency plan goal change for children to adoption, and its burden of
proving by clear and convincing evidence that Father’s parental rights should
be terminated pursuant to 23 Pa.C.S. §§ 2511(a)(2) and 2511(b).
Order and Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2017
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