Adoption of G.A., Appeal of: A.A. ( 2022 )

J-S36032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF G.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.A., FATHER :
:
:
:
:
: No. 410 WDA 2022
Appeal from the Order Entered March 29, 2022
In the Court of Common Pleas of Fayette County Orphans' Court at
No(s): 76 Adopt 2018
IN RE: ADOPTION OF P.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.A., FATHER :
:
:
:
:
: No. 411 WDA 2022
Appeal from the Order Entered March 29, 2022
In the Court of Common Pleas of Fayette County Orphans' Court at
No(s): 77 ADOPT 2018
IN RE: ADOPTION OF: D.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.A., FATHER :
:
:
:
:
: No. 412 WDA 2022
Appeal from the Order Entered March 29, 2022
In the Court of Common Pleas of Fayette County Orphans' Court at
No(s): Case No. 78 Adopt 2018
J-S36032-22
BEFORE: STABILE, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: DECEMBER 28, 2022
A.A. (“Father”) appeals from the decrees entered March 29, 2022 that
granted the petitions of the Fayette County Child and Youth Services (“CYS”),
and involuntarily terminated his parental rights to his daughters, D.A. (born
September 2012) and P.A. (born June 2015), and his son, G.A. (born July
2016) (collectively, “the Children”).1 After careful review, we affirm.
The Children were adjudicated dependent on September 28, 2017, after
CYS had become involved with the family following reports of housing
concerns (no heat or electricity in the house and the Children being dirty and
uncared for), as well as domestic violence and mental health concerns for both
Father and J.A. (“Mother”).2 N.T., 3/24/22 (“N.T.”), at 5. The Children were
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1Mother’s parental rights to the Children were also terminated. Mother has
appealed the decrees entered on March 29, 2022 at 387 WDA 2022, 388 WDA
2022, and 389 WDA 2022.
2 CYS’s amended petition for involuntary termination of parental rights
indicates that following the adjudication of dependency, and prior to the
reports of sexual abuse, a goal plan was established for Father which included,
inter alia, addressing domestic violence issues, obtaining a mental health
evaluation and attending all scheduled mental health appointments, obtaining
appropriate housing free from any safety and health hazards, obtaining
medical care for the Children as needed, assuring the Children have adequate
food, shelter and clothing, and attending visitation with the Children
consistently. Amended Petition for Involuntary Termination of Parental
Rights, 10/25/21. CYS reported that Father failed to complete the goals set
for him and failed to make progress on addressing the issues that led to the
placement of the Children. Id. After Father was indicated as a perpetrator of
sexual assault by commission against P.A. and G.A. and a perpetrator of
(Footnote Continued Next Page)
-2-
J-S36032-22
initially placed together in the Rockwell Foster Home, and remained together
until August 8, 2018, when CYS received a number of reports from Child
Protective Services alleging sexual abuse that listed Father and Mother as
perpetrators and the Children as victims, and that D.A. had reported a need
to sexually abuse her siblings. Id. at 6. D.A. was then moved to a new
placement, with a foster mother, and P.A. and G.A. were placed together with
new foster parents, and the Children have remained in their respective
placements since then. Id.
CYS reported the allegations of abuse to the police, and both Father and
Mother were arrested in August 2018 and charged with numerous criminal
offenses related to the alleged sexual abuse and neglect of the Children;
however, the Criminal Information filed against both Father and Mother named
D.A. as the lone victim.3 Father was convicted by a jury, on July 10, 2019, of
seven counts, including rape of a child; involuntary deviate sexual intercourse
(with a child under age 13); aggravated indecent assault (of a child under age
13); indecent assault; endangering the welfare of children; corruption of
____________________________________________
involuntary deviate sexual intercourse and sexual assault of D.A. by
commission, the goal plan review completed in July 2018 added the goal of
completing sexual offender treatment; however Father never sought
assessment or treatment for sexual abuse issues. Id.
3 The trial court noted CYS’s acknowledgment that the convictions were only
as to D.A., but the caseworker testified that Father and Mother were also
indicated for sexual abuse against both P.A. and G.A. Orphans’ Court Opinion
at 18; N.T. at 15. At the hearing, counsel for CYS stated that the Criminal
Information was not filed against P.A. and G.A. because they were not old
enough to testify at trial. N.T. at 15-16.
-3-
J-S36032-22
minors; and sexual assault. Father was sentenced to seventeen to forty years
of imprisonment.4 N.T. at 9-10, Petitioner’s Exhibits 4 and 5.
Initially, CYS filed petitions for involuntary termination of parental rights
against both Father and Mother on December 21, 2018;5 however, the
petitions were continued generally pending disposition of the criminal charges
against Father and Mother. Following the convictions, CYS amended its
petitions on October 26, 2021 and at the time set for the hearing, it proceeded
solely on the grounds for involuntary termination under 23 Pa.C.S. §
2511(a)(10) and (b).
On March 24, 2022, the orphans’ court conducted evidentiary hearings
on the petitions. CYS presented the testimony of Marissa Engle, the on-going
caseworker for the Children. The Children were represented by James Geibig,
Esq., as guardian ad litem. After CYS rested its case, Father moved for a
continuance, arguing that although his conviction had been affirmed on appeal
to this Court, he was still litigating pursuant to the Post Conviction Relief Act
and his criminal case had not yet been fully resolved.6 N.T. at 17. The court
____________________________________________
4Mother was convicted of indecent assault – person less than 13 years of age,
corruption of minors, and endangering the welfare of children. Mother was
sentenced to three to seven years in prison. N.T. at 8-9, Petitioner’s Exhibits
1 and 2.
5 The original petitions to involuntarily terminate both Father’s and Mother’s
rights to the Children were filed pursuant to 23 Pa.C.S. § 2511(a)(1), (2),
(5) and (8).
(Footnote Continued Next Page)
-4-
J-S36032-22
denied the motion, explaining that “the statute requires only a conviction and
not finality of the judgment,” see Orphans’ Court Opinion at 4, and granted
the petitions for involuntary termination of parental rights.
On appeal, Father raises a sole question for our review:
Did the lower court err by proceeding with the hearing on the
petition to terminate parental rights in the above captioned case
before the final judgment in Father’s criminal case, when the
termination of Father’s parental rights are based on the facts of
his criminal case?
Father’s Brief at 3.
We review Father’s claim mindful of our well-settled standard of review:
“[i]n cases concerning the involuntary termination of parental rights, appellate
review is limited to a determination of whether the decree of the termination
court is supported by competent evidence.” In re Adoption of C.M., 255
A.3d 343, 358 (Pa. 2021). When applying this standard, the appellate court
must accept the trial court’s findings of fact and credibility determinations if
they are supported by the record. Interest of S.K.L.R., 256 A.3d 1108, 1123
(Pa. 2021). “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.” In re Adoption of
L.A.K., 265 A.3d 580, 591 (Pa. 2021).
____________________________________________
6In its opinion, the orphans’ court noted that Father’s direct appeal was denied
by this Court on March 5, 2021, no further appeal was taken, and post-
conviction proceedings have been pending since May 2021. Orphans’ Court
Opinion at 6-7.
-5-
J-S36032-22
In considering a petition to terminate parental rights, a trial court must
balance the parent’s fundamental “right to make decisions concerning the
care, custody, and control” of his or her child with the “child’s essential needs
for a parent’s care, protection, and support.” C.M., 255 A.3d at 358.
Termination of parental rights has “significant and permanent consequences
for both the parent and child.” L.A.K., 265 A.3d at 591. As such, the law of
this Commonwealth requires the moving party to establish the statutory
grounds by clear and convincing evidence, which is evidence that is so “clear,
direct, weighty, and convincing as to enable a trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in issue.” C.M.,
255 A.3d at 359 (citation omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated analysis:
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) (citations omitted). Here,
the orphans’ court terminated Father’s parental rights pursuant to 23 Pa.C.S.
§ 2511(a)(10) and (b). Section 2511 provides, in relevant part, as follows:
-6-
J-S36032-22
§ 2511. Grounds for involuntary termination
(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:
- - -
(10) The parent has been found by a court of competent
jurisdiction to have committed sexual abuse against the
child or another child of the parent based on a judicial
adjudication equivalent to an offense in subparagraph
1(i), (ii), (iii) or (iv) or (4) of the definition of “founded
report” in section 6303(a) (relating to definitions)
where the judicial adjudication is based on a finding of
“sexual abuse or exploitation” as defined in section
6303(a).
- - -
(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…
23 Pa.C.S. § 2511(a)(10), and (b) (emphasis supplied).
Section 6303(a) defines “founded report” as occurring when,
(1) There has been a judicial adjudication based on a finding that
a child who is a subject of the report has been abused and the
adjudication involves the same factual circumstances involved in
the allegation of child abuse. The judicial adjudication may include
any of the following:
- - -
(ii) a finding of guilt to a criminal charge.
- - -
23 Pa.C.S. § 6303(a).
-7-
J-S36032-22
The relevant portions of Section 6303 define “sexual abuse or
exploitation” to include any of the enumerated offenses committed against a
child including:
(i) Rape as defined in 18 Pa.C.S. § 3121 (relating to rape).
---
(iii) Involuntary deviate sexual intercourse as defined in 18
Pa.C.S. § 3123 (relating to involuntary deviate sexual
intercourse).
- --
(vi) Aggravated indecent assault as defined in 18 Pa.C.S. §
3125 (relating to aggravated indecent assault).
(vii) Indecent assault as defined in 18 Pa.C.S. § 3126
(relating to indecent assault).
23 Pa.C.S. § 6303.
Before this Court, Father argues that his criminal convictions cannot be
the sole basis for the termination of his parental rights when all litigation
involving such convictions are not fully resolved and there is still the possibility
that his convictions will be overturned, leaving him no recourse to reinstate
said parental rights. Father’s Brief at 12. We find this argument to be without
merit. At the termination hearing, CYS presented the testimony of its
caseworker, who identified each of the exhibits which were then offered into
evidence, including the verdict slips indicating “guilty” for each of the seven
counts against him, the sentencing orders, and the sexual offender notification
for a Tier III sexual offense. CYS Exhibits 4-6; N.T. at 9-10. In its opinion,
the orphans’ court found this evidence
-8-
J-S36032-22
sufficient pursuant to 23 Pa.C.S. § 2511(a)(10) to involuntarily
terminate the parental rights of…[Father] having been convicted
by a jury [on July 10, 2019] of rape, involuntary deviate sexual
intercourse, aggravated indecent assault, and indecent assault.
The victim in the criminal actions was [Father’s] biological
daughter, [D.A.]. 23 Pa.C.S. § 2511(a)(10) provides authority to
terminate parental rights as to the victim, [D.A.], and to other
children of the convicted parents, here [P.A.] and [G.A.].
Orphans’ Court Opinion at 6.
“By its plain language, the Adoption Act only requires the petitioner to
introduce proof of the parent’s conviction, not proof of the facts underlying
the parent’s guilt.” Interest of M.E., 283 A.3d 820, 831 (Pa. Super. 2022)
(holding father’s aggravated assault conviction, following a nolo contendere
plea, considered competent evidence to establish grounds to terminate
parental rights pursuant to Section 2511(a)(9)(ii)) (emphasis supplied). Here,
CYS submitted proof of Father’s convictions of seven criminal offenses,
including rape, involuntary deviate sexual intercourse, aggravated indecent
assault and indecent assault. Pursuant to Section 2511(a)(10) and Section
6303 incorporated therein, the jury’s finding that Father was guilty of those
crimes constitutes a judicial adjudication based on a finding of “sexual abuse
or exploitation.” 23 Pa.C.S. §§ 2511(a)(10), 6303(a).
In its opinion, the orphans’ court addressed the question of timing as
to when a criminal conviction for sexual abuse may be used to involuntarily
terminate parental rights, noting that Section 2511(10) requires a “judicial
adjudication” as defined in the “founded report” in Section 6303(a), and the
“judicial adjudication” occurred on July 18, 2019, the date of sentence. See
-9-
J-S36032-22
Orphans’ Court Opinion at 6. In In the Interest of K.E.E., 240 A.3d 910(2020) (unpublished memorandum), our Court previously acknowledged that
there is not a wealth of caselaw concerning challenges to the sufficiency of the
evidence regarding termination of a parent’s rights pursuant to Section
2511(a)(9), the ground for termination based upon a conviction for delineated
offenses, including aggravated assault, against the parent’s child.7 Similarly,
there is a dearth of caselaw regarding challenges to the companion grounds
for termination set forth in Section 2511(a)(10). We find our Court’s decision
in K.E.E., albeit non-precedential,8 to be instructive. In K.E.E., the mother
was found by a court of competent jurisdiction to have committed aggravated
assault, whereas here, Father has been found to have committed sexual
abuse. In both cases, the parent argued that because their appeal from the
conviction has not been finally resolved, clear and convincing evidence is
lacking sufficient to satisfy the statutory grounds for termination. Id. at *16.
In K.E.E., our Court interpreted Section 2511(a)(9), and concluded that the
____________________________________________
7 Section 2511(a)(9) provides for the termination of parental rights after:
(9) The parent has been convicted of one of the following in which
the victim was a child of the parent:
- - -
(ii) a felony under 18 Pa.C.S. § 2702 (relating to aggravated
assault);
23 Pa.C.S. § 2511(a)(9).
8Non-precedential decisions filed after May 1, 2019, may be cited for their
persuasive value. See Pa.R.A.P. 126(b).
- 10 -
J-S36032-22
orphans’ court did not abuse its discretion in concluding the agency had
introduced clear and convincing evidence sufficient to find the mother had
been convicted of aggravated assault of her child such that the requirements
of the statute were satisfied. Id. at *22. Our Court acknowledged that the
term “conviction” is not explicitly defined in the Adoption Act, but noted that
“it is generally understood, for legal purposes, to refer to a judgment of
sentence entered after a finding of guilt or entry of a plea.” Id. at *20. See
also Commonwealth v. Hale, 85 A.3d 570, 582 (Pa. Super. 2014)
(“Succinctly put, without a sentence, a verdict or plea generally was not a
‘conviction’ under Pennsylvania law.”).
The K.E.E. court stated:
When specifying that courts may terminate parental rights for
convictions of certain crimes, the legislature made no mention of
the appellate process. The legislature specifically did not require
a final judgment of sentence, as it did in the requirements for
jurisdiction to file a petition seeking Post Conviction Relief. See
42 Pa.C.S.A. § 9545. Accordingly, the Domestic Relations Code,
which specifies a conviction, is not ambiguous and when “the
words of a statute are clear and free from all ambiguity, the letter
of it is not to be disregarded under the pretext of pursuing its
spirit.” G.A.P. [v. J.M.W., 194 A.3d 614,] 616-617 [(Pa. 2018)].
K.E.E., unpublished memorandum at *21. Both the orphans’ court here and
the K.E.E. court correctly observed that because “we presume the General
Assembly does not intend a result that is absurd, impossible of execution, or
unreasonable and does intend to favor the public interest over any private
interest,” we cannot come to the conclusion that our legislature intended to
force our lower courts to wait to issue termination decrees until a parent could
- 11 -
J-S36032-22
potentially exhaust all avenues of appeal and post-conviction review, a
process that could take years. See G.A.P., 194 A.3d at 616-17.
Accordingly, we find that the evidence of Father’s guilty verdict for rape,
involuntary deviate sexual intercourse, aggravated indecent assault and
indecent assault and accompanying judgment of sentence presented at the
hearing constituted clear and convincing evidence of grounds for termination
under Section 2511(a)(10), and the orphans’ court did not abuse its discretion
in finding such.
Father does not challenge the orphans’ court’s conclusion under Section
2511(b). At the hearing, the caseworker testified that the Children were
adjudicated dependent over five years ago, and have remained in their
respective placements since 2018. The Children are doing well, and are
receiving treatment as a result of the trauma caused by the sexual abuse
inflicted by their parents. N.T. at 11-12. The caseworker testified that the
Children have suffered no adverse effects from not having seen their parents
since 2018, and all three have bonded with their respective families, which
are both prospective adopters. Id. at 13. D.A. sees P.A. and G.A. every
other month, and the Children communicate via video facetime calls two times
per month. Id. at 14. The court found no familial bond with either parent
and determined that the severance of parental rights would allow permanency
for the Children; the court further concluded that their foster care families had
provided them a safe, stable home, with continued love, protection and
support. Orphans’ Court Opinion at 23. The credited testimony supports the
- 12 -
J-S36032-22
orphans’ court conclusion that it would best serve the needs and welfare of
the Children to terminate Father’s parental rights pursuant to Section 2511(b).
Accordingly, the orphans’ court did not err in terminating Father’s parental
rights concerning the Children.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2022
- 13 -