In the Interest of: D.M., a Minor, Appeal of: R.M. ( 2014 )


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  • J-S45014-14
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN THE INTEREST OF: D.N.M., A MINOR,             IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    APPEAL OF: R.M., FATHER,
    Appellant                 No. 511 EDA 2014
    Appeal from the Order Entered January 8, 2014
    In the Court of Common Pleas of Philadelphia County
    Family Court at No(s): CP-51-AP-0000711-2013, CP-51-DP-0001380-2011,
    FID: 51-FN-002998-2011
    BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
    MEMORANDUM BY BOWES, J.:                            FILED AUGUST 08, 2014
    wherein the trial court involuntarily terminated his parental rights to then
    six-year-old D.N.M.1 We affirm.
    involved with this family on June 14, 2011, after it received a General
    involuntarily hospitalized for mental health treatment following a psychotic
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    1
    were also terminated at the same proceeding. Mother and the other father
    have filed separate appeals, which are before this panel.
    J-S45014-14
    episode.     The report, which was later substantiated, further alleged that
    Mother chronically used drugs, abused PCP, angered easily, screamed and
    yelled at the children, and hit D.M.N. in a heavy-handed manner.         Father
    was incarcerated, and D.M.N. and her younger sibling were placed in the
    care of their maternal grandmother.
    Mother indicated that she would enter an inpatient drug and alcohol
    rehabilitation program.   The children remained with maternal grandmother
    and a safety plan was implemented.              Mother returned to maternal
    were not being properly cared for and obtained Orders of Protective Custody
    ere placed with their maternal aunt,
    K.S. At the July 8, 2011 shelter care hearing, the OPC was lifted and the
    hearing on July 13, 2011, D.M.N. and her sister were adjudicated dependent
    and placed together with the maternal aunt, where they remained until
    March 2012, when they were placed in their present pre-adoptive foster
    home.      Mother was referred to for a dual diagnosis evaluation and Father
    was referred to the Achieving Reunification Center (ARC).
    A permanency review hearing was held on October 6, 2011. Although
    Father had been contacted by DHS social worker Akilah Owens, he did not
    respond.      Father remained incarcerated and did not participate in the
    January 27, 2012 Family
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    was to contact DHS so that services could be made available to him. At a
    subsequent FSP meeting on July 10, 2012, additional objectives of parent
    training and drug and alcohol treatment were added for Father.
    2012 FSP meeting.      At that point, Mother was not progressing in her
    meeting her objectives, Father remained incarcerated, and D.M.N. had been
    in foster care since July 2011. Father was to contact D.N.M. through letters,
    attend parenting classes and participate in counseling. At the permanency
    hearing on March 20, 2013, the court listed the matter for a goal
    change/involuntary termination of parental rights proceeding.     During the
    latter half of 2013, Father responded to DHS correspondence to decline
    visitation with his daughter in prison as he did not feel it was appropriate.
    He also expressed that he did not want his daughter to be placed with her
    On August 14, 2013, DHS informed the court of its intention to seek
    involuntary termination and a goal change to adoption. On December 20,
    2013, DHS filed petitions to that effect, and following a hearing on January
    8, 2014, the trial court terminated both Father and Mother
    to D.N.M. pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5) and (8). Father filed
    the instant appeal and complied with Pa.R.A.P. 1925(a)(2)(i) by filing a Rule
    1925(b) concise statement of errors complained of on appeal.        The trial
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    court addressed the arguments in its Rule 1925(a) opinion. Father presents
    two questions for our review:
    1. Whether the Trial Court erred by terminating the parental
    rights of Appellant, Father, under 23 Pa.C.S.A. § 2511
    subsections (a)(1), (a)(2), (a)(5) and § 2511(a)(8)?
    2. Whether the Trial Court erred by finding under 23 Pa.C.S.A. §
    needs and welfare?
    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
    eviden
    grounds for termination delineated in Section 2511(a). Only if
    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 the 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.
    t to come to
    a clear conviction, without hesitance, of the truth of the precise facts in
    In re R.N.J., 
    985 A.2d 273
    , 276 (Pa.Super. 2009) (quoting In re
    J.L.C., 
    837 A.2d 1247
    , 1251 (Pa.Super. 2003)).
    When reviewing an order terminating parental rights,
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    we are limited to determining whether the decision of the trial
    court is supported by competent evidence. Absent an abuse of
    discretion, an error of law, or insufficient evidentiary support for
    the trial court's decision, the decree must stand. Where a trial
    court has granted a petition to involuntarily terminate parental
    rights, this Court must accord the hearing judge's decision the
    same deference that we would give to a jury verdict. We must
    employ a broad, comprehensive review of the record in order to
    determine whether the trial court's decision is supported by
    competent evidence.
    In re R.N.J., 
    supra at 276
     (quoting In re S.H., 
    879 A.2d 802
    , 805
    will affirm even if th                                                       In re
    N.C., 
    763 A.2d 913
    , 917 (Pa.Super. 2000).         To affirm, we need only find
    competent evidence in support of any one of the subsections pled.            In re
    S.M.B., 
    856 A.2d 1235
     (Pa.Super. 2004).
    Title 23 Pa.C.S. § 2511(a) sets forth the grounds for termination of
    parental rights and provides in pertinent part:
    (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.
    (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.
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    ....
    (5) The child has been removed from the care of the
    parent by the court or under a voluntary agreement
    with an agency for a period of at least six months,
    the conditions which led to the removal or placement
    of the child continue to exist, the parent cannot or
    will not remedy those conditions within a reasonable
    period of time, the services or assistance reasonable
    available to the parent are not likely to remedy the
    conditions which led to the removal or placement of
    the child within a reasonable period of time and
    termination of the parental rights would best service
    the needs and welfare of the child.
    ....
    (8) The child has been removed from the care of the
    parent by the court or under a voluntary agreement
    with an agency, 12 months or more have elapsed
    from the date of removal or placement, the
    conditions which led to the removal or placement of
    the child continue to exist and termination of
    parental rights would best serve the needs and
    welfare of the child.
    ....
    23 Pa.C.S. § 2511.
    convincing evidence of conduct, sustained for at least six months prior to the
    filing of the termination petition on December 20, 2013, which revealed a
    perform parental duties for purposes of section 2511(a)(1).      According to
    Father, the evidence established that he met all of his objectives. He made
    his whereabouts known to DHS in 2012, and he wrote a letter to the social
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    worker in 2013.     Furthermore, it was undisputed that Father completed
    parenting and drug and alcohol classes while incarcerated.    Finally, Father
    sent letters to D.N.M., spoke to her on the telephone and sent gifts to her.
    In light of his compliance with his objectives, Father argues that DHS failed
    to prove by clear and convincing evidence that his parental rights should be
    terminated under (a)(1).
    DHS counters that, for the first two years when D.N.M. was in
    placement, Father made no effort to contact her. He effectively abandoned
    contact with D.N.M. and increased contact with the agency occurred two to
    three months prior to the termination hearing, and coincided with the
    Father was not genuinely interested in a parental relationship with D.N.M. or
    in assuming parental responsibil
    performance of parental obligations.   DHS maintains that Father remained
    a parent-                    In re Adoption of K.J., 
    936 A.2d 1128
    , 1133
    (Pa.Super. 2007).   DHS contends that Father did not utilize the available
    resources to communicate with his child to that end.
    Additionally, DHS takes the position that the evidence also satisfied
    the statutory grounds for termination under (a)(2), since Father had not
    provided parental care and was not in a position to do so due to his
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    continuous incarceration.       It relies upon In re Adoption of S.P., 
    47 A.3d 817
    , 828 (Pa. 2012), where our High Court held that incarceration is a
    factor
    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
    The record indicates that Father had no contact with D.N.M. for more
    than two years while she was in foster care. In September 2013, one month
    after DHS indicated that it would seek a goal change to adoption, Father
    2
    Trial Court Opinion, 3/11/14, at 6. While he
    did complete parenting and drug and alcohol class
    demons                                                  -          
    Id.
    ____________________________________________
    2
    While the trial court declined to consider any post-petition efforts by
    Father to remedy conditions described therein pursuant to 23 Pa.C.S.
    §
    his daughter in the months prior to the filing of the goal change/termination
    petition. However, due to the fact that Father had no contact with D.N.M.
    for more than two years and only initiated contact upon learning that DHS
    intended to seek a goal change to adoption, the trial court was not
    persuaded that the interest in her well-being was genuine.
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    Furthermore, the court found it was unknown when Father would be
    able to parent D.N.M. Id
    incarceration rendered him incapable of parenting and acknowledged that
    this was a condition that could not be remedied by Father for purposes of 23
    Pa.C.S. § 2511(a)(2).
    rights under Section 2511(a)(2), due to parental incapacity that cannot be
    remedied, are not limited to affirmative misconduct; to the contrary those
    grounds may include acts of refusal as well as incapacity to perform parental
    In re K.J., 
    936 A.2d 1128
    , 1132 (Pa.Super. 2007). In considering
    the effect of incarceration for purposes of subsection (2), our High Court
    stated:
    we now definitively hold that incarceration, while not a litmus
    test for termination, can be determinative of the question of
    whether a parent is incapable of providing "essential parental
    care, control or subsistence" and the length of the remaining
    confinement can be considered as highly relevant to whether
    "the conditions and causes of the incapacity, abuse, neglect or
    refusal cannot or will not be remedied by the parent," sufficient
    to provide grounds for termination pursuant to 23 Pa.C.S. §
    2511(a)(2). See e.g. Adoption of J.J., 515 A.2d at 891 ("[A]
    parent who is incapable of performing parental duties is just as
    parentally unfit as one who refuses to perform the duties.");
    E.A.P., 944 A.2d at 85 (holding termination under § 2511(a)(2)
    supported by mother's repeated incarcerations and failure to be
    present for child, which caused child to be without essential care
    and subsistence for most of her life and which cannot be
    remedied despite mother's compliance with various prison
    programs).
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    In re Adoption of S.P., supra at 830-831. As this Court has repeatedly
    [A] parent's basic constitutional right to the custody and rearing of
    child's right to have proper parenting and fulfillment of his or her potential in
    In re K.J., supra at 1133
    (quoting In re N.M.B., 
    856 A.2d 847
    , 856 (Pa.Super. 2004)).
    In the instant case, the court found a legal basis for terminating
    both subsections (a)(1) and (a)(2).3 The record confirms that Father made
    very limited outreach to DHS until three months before the termination
    hearing.    Similarly, after no contact with his daughter for more than two
    years, Father reached out to her at approximately the same time. The trial
    -being. Trial Court Opinion, 3/11/14, at 5.
    The trial court was unpersuaded that Father, having failed to maintain
    a relationship with D.N.M. during his incarceration, could fulfill his role as
    ____________________________________________
    3
    Since we need only find that one statutory ground for involuntary
    termination of parental rights was established pursuant to subsection (a), we
    do not reach F
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    etion of
    parenting and drug and alcohol classes cannot compensate for the fact that
    to contact her for more than two years.
    Having concluded that the subsection (a) statutory requirement for
    involuntary termination of parental rights was established, we must consider
    and welfare will be met by termination pursuant to subsection (b). See In
    re D.W., 
    856 A.2d 1231
    , 1234 (Pa.Super. 2004). Section 2511(b) provides
    in pertinent part:
    (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(b).
    It is well-
    not required to use expert testimony. Social workers and caseworkers can
    offer evaluations as well. Additionally, § 2511(b) does not require a formal
    In re Z.P., 
    994 A.2d 1108
    , 1121 (Pa.Super. 2010).
    Instantly, the DHS social worker Akilah Owens, and the foster care social
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    worker, Zakiah Snead, both testified to the absence of a father-child bond.
    r other than
    D.N.M.    Id. at 41.   The trial court concluded that there was no evidence
    presented at the hearing of a parent child bond between Father and D.N.M.
    The court also credited the testimony of Ms. Snead that D.N.M. was
    -adoptive foster parents with whom she had resided
    since July 2011. N.T., 1/8/14, at 88. Ms. Owens, who had observed D.N.M.
    in the home of her foster parents a least twenty-four times concurred in that
    assessment. Id. at 43. The record confirmed that D.N.M. referred to her
    foster parents as
    Id. Ms. Snead testified that there would be no negative effects upon
    D.N.M. if the parental rights of Father were terminated, id. at 89, and
    opined that adoption was the proper goal for D.N.M. Id. at 90.
    developmental, physical, and emotional needs and welfare. Father had not
    seen his daughter for at least two and one-half years and had no contact at
    all for at least two years. Father initiated contact only after an impending
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    J-S45014-14
    goal change to adoption was announced in August 2013, and that contact
    consisted of one supervised phone call and several letters and gifts. Id. at
    73-4. We also view the fact that D.N.M. and her younger sister are together
    in the pre-
    emotional needs and welfare.
    Based upon the foregoing, we find that DHS satisfied its statutory
    burden pursuant to § 2511(a) and that the termination
    rights would serve the best interests of D.N.M. under § 2511(b).
    Accordingly, we aff
    D.N.M.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/8/2014
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