In the Interest of: G.F.W., a Minor ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: G.F.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.N.C., FATHER :
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:
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: No. 2914 EDA 2015
Appeal from the Decree entered August 25, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000454-2015
CP-51-DP-0000738-2013
BEFORE: PANELLA, J., OTT, J., and FITZGERALD*, J.
MEMORANDUM BY PANELLA, J. FILED JULY 06, 2016
S.N.C. (“Father”) appeals from the decree entered on August 25,
2015, granting the petitions filed by the Philadelphia Department of Human
Services (“DHS”), seeking to involuntarily terminate his parental rights to his
dependent, minor child, G.F.W., a girl born January 2012 (“Child”), pursuant
to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and to
change Child’s permanency goal to adoption. Father is currently serving a
lengthy prison sentence for beating his four-month-old son to death. We
affirm.
On July 13, 2013, DHS filed a petition to terminate Father’s parental
rights to Child and a petition to change Child’s permanency goal to adoption.
* Former Justice specially assigned to the Superior Court.
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The trial court held a hearing on both petitions on August 25, 2015. At the
hearing, DHS presented the testimony of DHS social worker, Gwen Ross.
Father testified on his own behalf.
Child was born in January 2012, and Child’s sibling, S., was born in
January 2013. Child and S. shared the same birth parents. On April 9, 2013,
DHS received a Child Protective Services (“CPS”) report alleging that S. had
been taken to the Children’s Hospital of Philadelphia (“CHOP”) in cardiac
arrest and with catastrophic injuries. S.’s abdominal organs had been
crushed and his abdomen was full of blood. S. had fractures of both
clavicles, and had sustained numerous rib fractures in various stages of
healing. S. also had a lacerated liver and injuries to his spleen. S. was
certified as a near fatality. The report also alleged that Child and three of his
siblings were in the waiting room of the hospital and that Mother and Father
refused to have them medically evaluated. On April 10, 2013, S. died.
That same day, DHS also received a CPS report alleging that Child had
been evaluated at CHOP, and had multiple fractures in various stages of
healing. Child also had a possible old right tibia fracture. Mother and Father
could not explain Child’s injuries. That same day, DHS obtained an Order of
Protective Custody (“OPC”) for Child.
A shelter care hearing was held on April 12, 2013, and the trial court
ordered that Child be temporarily committed to DHS. On April 13, 2013,
Father was arrested for the death of S. He was later convicted of third
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degree murder, involuntary manslaughter, and endangering the welfare of
children and sentenced to twenty to forty years at a state correctional
institution.1
On November 18, 2013, an adjudicatory hearing was held. Child was
adjudicated dependent and committed to the care and custody of DHS. The
case was listed on a regular basis before the trial court for the purpose of
determining and reviewing the permanency plan of Child. Child has been in
foster care for approximately two years and has been placed in three foster
homes.
As noted, on August 25, 2015, a termination of parental rights hearing
for Child was held. Following the hearing, the trial court entered a decree
terminating Father’s parental rights pursuant to § 2511(a)(1), (2), (5), (8),
and (b) of the Adoption Act, and an order changing Child’s permanency goal
to adoption pursuant to § 6351 of the Juvenile Act.
Father timely appealed. In his brief on appeal, Father raises the
following issues:
1. Whether the [t]rial [c]ourt erred by terminating the parental
rights of Appellant, Father, under 23 Pa.C.S.A. § 2511
subsections (a)(1), (a)(2), (a)(5) and (a)(8)?
2. Whether the [t]rial [c]ourt erred by finding, under 23
Pa.C.S.A. § 2511(b), that termination of Appellant’s parental
rights best serves [Child’s] developmental, physical and
emotional needs and welfare?
1
This Court recently affirmed Father’s judgment of sentence. To keep the
parties anonymous in this filing we decline to provide a citation to the
memorandum decision.
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Father’s Brief, at 4.2
Initially, we review the termination decree according to the following
standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. As has been often
stated, an abuse of discretion does not result merely because
the reviewing court might have reached a different conclusion.
Instead, a decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.
[T]here are clear reasons for applying an abuse of discretion
standard of review in these cases. We observed that, unlike trial
courts, appellate courts are not equipped to make the fact-
specific determinations on a cold record, where the trial judges
are observing the parties during the relevant hearing and often
presiding over numerous other hearings regarding the child and
parents. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
2
Father waived any challenge concerning the trial court order changing
Child’s permanency goal from reunification to adoption, pursuant to the
Juvenile Act, 42 Pa.C.S.A. § 6351, by failing to include this issue in his
concise statement of matters complained of and statement of questions
involved portion of his brief. See Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (finding that an
appellant waives issues that are not raised in both his concise statement of
errors complained of on appeal and the statement of questions involved in
his or her brief on appeal).
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record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (citations
omitted).
Termination of parental rights is governed by § 2511 of the Adoption
Act, which requires a bifurcated analysis.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. 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) (citing 23 Pa.C.S.A. §
2511). The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted statutory grounds for seeking the termination of
parental rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super.
2009).
Instantly, the decree terminated Father’s parental rights pursuant to §
2511(a)(1), (2), (5), (8), and (b). This Court must agree with only one
subsection, in addition to § 2511(b), in order to affirm the termination of
parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
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banc). Herein, we review the decree pursuant to § 2511(a)(1) 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:
(1) The parents by conduct continuing for a period of at
least six months immediately preceeding the filing of this
petition either have evidenced a settled purpose of
relinquishing parental claim to said children or have
refused or failed to perform parental duties.
...
(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.
With respect to subsection (a)(1), “the moving party must produce
clear and convincing evidence of conduct, sustained for at least the six
months prior to the filing of the termination petition, which reveals a settled
intent to relinquish parental claim to a child or a refusal or failure to perform
parental duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing
In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). Further,
[o]nce the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights, the
court must engage in three lines of inquiry: (1) the parent’s
explanation for his or her conduct; (2) the post-abandonment
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contact between parent and child; and (3) consideration of the
effect of termination of parental rights on the child pursuant to
Section 2511(b).
Id. (quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa.
1998)).
Regarding the definition of “parental duties,” this Court has explained
that
[t]here 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 encompasses more than a
financial obligation; it requires continuing interest in
the child and a genuine effort to maintain
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.
Parental duty requires that the parent act affirmatively with good
faith interest and effort, and not yield to every problem, in order
to maintain the parent-child relationship to the best of his or her
ability, even in difficult circumstances. A parent must utilize all
available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed
in the path of maintaining the parent-child relationship. 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., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).
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In In re Adoption of S.P., supra, our Supreme Court discussed In
re Adoption of McCray, 331 A.2d 652 (Pa. 1975), a case wherein the
Court considered the issue of the termination of parental rights of
incarcerated persons involving abandonment, which is currently codified at §
2511(a)(1). The S.P. Court stated:
Applying in McCray the provision for termination of parental
rights based upon abandonment, now codified as § 2511(a)(1),
we noted that a parent “has an affirmative duty to love, protect
and support his child and to make an effort to maintain
communication and association with that child.” Id. at 655. We
observed that the father’s incarceration made his performance of
this duty “more difficult.” Id.
47 A.3d at 828. The S.P. Court continued:
[A] parent’s absence and/or failure to support due to
incarceration is not conclusive on the issue of abandonment.
Nevertheless, we are not willing to completely toll a parent’s
responsibilities during his or her incarceration. Rather, we must
inquire whether the parent has utilized those resources at his or
her command while in prison in continuing a close relationship
with the child. Where the parent does not exercise reasonable
firmness in declining to yield to obstacles, his other rights may
be forfeited.
Id. (citing McCray, 331 A.2d at 655).
In this case, Father’s history with Child is well documented in the
record. (And he brutally murdered his four-month-old son.) Father’s
parenting skills and concern as a parent are minimal and he has not
managed to finish his reunification plan over a period of six months. None of
the objectives in Father’s plan has been completed. The trial court found
that, until Father completes the plan, success cannot be declared, and that
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the importance of the service plan and the goals it identifies for Child cannot
be overemphasized. See In re J.S.W., 651 A.2d 167 (Pa. Super. 1994).
The trial court found it clear from the record that, for a period of six
months leading up to the filing of the termination petition Father has
undertaken no efforts to attempt to maintain any sort of consistent
involvement with the Child, either before or during his incarceration, and
failed or refused to perform parental duties for Child. Father himself testified
that he does not have a relationship with Child.
In addition, DHS did not arrange visitation between Father and Child
due to the young age of Child and the fact that Father was ordered to stay
away from Child until she reaches the age of maturity. The order was aptly
issued as part of Father’s sentence for the murder of S.
Child has been in foster care for twenty-two months, and testimony
established that Child is in a safe environment where her needs are being
met. Thus, after a careful review of the record, we find no merit to Father’s
argument concerning § 2511(a)(1).
Next, in reviewing the evidence in support of termination under section
2511(b), our Supreme Court recently stated as follows:
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare
of the child have been properly interpreted to include
“[i]ntangibles such as love, comfort, security, and stability.” In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M.,
[620 A.2d 481, 485 (Pa. 1993)], this Court held that the
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determination of the child’s “needs and welfare” requires
consideration of the emotional bonds between the parent and
child. The “utmost attention” should be paid to discerning the
effect on the child of permanently severing the parental bond.
In re K.M., 53 A.3d at 791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
In reviewing the case, the trial court found that Father cannot care for
the Child’s needs because he still has serious problems which have not been
resolved, and he has no parental relationship with Child. (And one cannot
forget that he is serving a very lengthy prison sentence at a state
correctional institution for infanticide.)
With regard to section 2511(b), the evidence reveals that Father does
not have a strong bond with the Child. Foster parents have taken care of all
of Child’s needs, and the DHS caseworker testified that, at the time of the
hearing, Child was about to be placed in a pre-adoptive home with the
agency. The trial court found that there is no evidence that Child would be
adversely affected if her relationship with Father is severed.
Competent evidence in the record shows Father failed to “exhibit [the]
bilateral relationship which emanates from the parent[’s] willingness to learn
appropriate parenting . . . .” In re K.K.R.S., 958 A.2d 529, 534 (Pa. Super.
2008). He did not put himself in a position to assume daily parenting
responsibilities so that he could develop a real bond with the Child. See In
re J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003).
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Although Father may love the Child and desire an opportunity to serve
as her father, a parent’s own feelings of love and affection for a child, alone,
will not preclude termination of parental rights. See In re Z.P., 994 A.2d
1108, 1121 (Pa. Super. 2010). A child’s life “simply cannot be put on hold in
the hope that [a parent] will summon the ability to handle the
responsibilities of parenting.” In Re Z.S.W., 946 A.2d 726, 732 (Pa. Super.
2008) (citations omitted). Rather, a parent’s basic constitutional right to the
custody and rearing of her child is converted, upon the failure to fulfill his
parental duties, to the child’s right to have proper parental care. See In re
Z.P., 994 A.2d at 1120.
The failure to terminate Father’s parental rights would condemn Child
to a life in foster care with no possibility of obtaining a permanent and stable
home. Based on the foregoing evidence, which we have reviewed in
accordance with the relevant statutory and case law, we conclude that the
trial court did not abuse its discretion in involuntarily terminating Father’s
parental rights pursuant to § 2511(b).
Accordingly, we affirm the decree terminating Father’s parental rights
to the Child pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b), and changing
Child’s permanency goal to adoption.
Decree affirmed.
Justice Fitzgerald joins the memorandum.
Judge Ott concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
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