In the Int. of: J.J.N., a Minor ( 2022 )

J-A23029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.J.N., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.K.N., JR., FATHER :
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: No. 603 MDA 2022
Appeal from the Decree Entered March 25, 2022
In the Court of Common Pleas of York County Orphans' Court at No(s):
2022-0030a
IN THE INTEREST OF: J.J.N., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: J.K.N., JR., FATHER :
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: No. 604 MDA 2022
Appeal from the Decree Entered March 25, 2022
In the Court of Common Pleas of York County Orphans' Court at No(s):
2022-0031A
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: NOVEMBER 15, 2022
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A23029-22
J.K.N., Jr. (“Father”) appeals from the March 25, 2022 decrees that
terminated involuntarily his parental rights to two of his children: Jai.J.N.,
born in March 2019, and Ja.J.N., born in October 2020.1 We affirm.
We provide the following background. In December 2020, Mother was
living with Jai.J.N. and Ja.J.N. in a domestic violence shelter in Ohio.
Cuyahoga County Child Protective Services (“CCCPS”) received a referral on
December 10, 2020, after two-month-old Ja.J.N. presented to the hospital
with a non-accidental and unexplained parietal skull fracture. Due to this
injury and a concern for domestic violence between Mother and Father, CCCPS
attempted to implement a safety plan. However, that plan never came to
fruition because Mother relocated to York County, Pennsylvania without
notifying CCCPS.
Shortly thereafter, on December 18, 2020, the York County Office of
Children, Youth and Families (“CYF”) received a referral for the family. CYF
conducted a home visit on December 19, 2020. Father was not present as he
was evading the police. CYF confirmed the skull fracture and determined that
Mother was unemployed and unable to provide stable housing. Attempts at a
safety plan were unsuccessful, so CYF filed an application for emergency
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1 Father is also appealing a separate decree terminating his parental rights to
a third child, Je.J.N., born in October 2021, at docket 744 MDA 2022. Since
all three children have the same initials, we included enough additional letters
from their first names for ease of identification within this memorandum. All
three children share the same mother, D.K. (“Mother”). The orphans’ court
also terminated Mother’s parental rights to the children, but she has not
appealed.
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protective custody and the children were placed into kinship care.2 In January
2021, the children were adjudicated dependent. Father was not present at
the adjudicatory hearing but was aware of their placement into kinship care
as it was reported that he had visited the children there. Since Father’s
whereabouts were unknown, his only goal was to contact CYF “to discuss the
expectations regarding services and supervised visitation if he wishes to be
involved with his children[.]” CYF Exhibit 1 (Family Service Plan, 2/22/21, at
9); see also id. (Family Service Plan, 8/3/21); id. (Family Service Plan,
1/24/22).
The orphans’ court issued permanency and status review orders in May,
September, and October of 2021, finding in all of them that Father had not
had any contact with the children or CYF, still had outstanding warrants, and
had not made any progress towards alleviating the issues that led to the
original placement. On January 27, 2022, the police searched the home where
Mother and Father were then living. As a result, the Commonwealth filed
multiple drug charges against Mother and Father.
Father’s first contact with CYF was when he appeared at the next status
review hearing, which was held on February 7, 2022. At that time, Father
indicated that he was living with Mother and that he wanted to work towards
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2 Jai.J.N. and Ja.J.N. are no longer in kinship care. From kinship care, they
were placed into a foster home together. On November 21 or 22, 2021,
Jai.J.N. and Ja.J.N. joined Je.J.N. at the foster home where they currently
reside. The current foster family is a pre-adoptive resource for all three
children.
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reunification. The court ordered him to obtain housing and employment,
follow through with the criminal process, contact CYF to develop goals and
services, and have regular visitation with the children. Upon contacting CYF,
the agency advised Father that his goals were to contact and cooperate with
CYF, maintain stable income and housing, cooperate with an in-home team
for parenting and budgeting, attend visitation with the children consistently,
participate in domestic violence treatment, and resolve his criminal charges.
On February 9, 2022, CYF filed petitions to terminate the parental rights
of Father as to Jai.J.N. and Ja.J.N. pursuant to 23 Pa.C.S. § 2511(a)(1), (2),
(4), (5), and (8).3 The orphans’ court held a hearing on these petitions on
March 25, 2022.4 CYF presented the testimony of CYF caseworker Samuel
Richard and K.L., the current foster mother. Father testified on his own behalf.
Mr. Richard indicated that Father had made no progress on his goals
and had not provided any documentation of employment. As Father had only
made contact with CYF approximately one month before the termination
hearing, Mr. Richard noted that besides attempting to initiate visitation, no
services had yet been provided to Father. Mr. Richard additionally reported
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3 CYF also filed petitions to terminate Father’s rights to Je.J.N. and Mother’s
parental rights to all three children. Following the hearing, the orphans’ court
denied those initial petitions as to Je.J.N.
4 At the hearing, Laura L. Smith, Esquire, represented all three children as
guardian ad litem (“GAL”) and legal counsel. We note with displeasure that
Attorney Smith did not file a brief with this Court on behalf of the children.
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that Father had not had any supervised visitation with the Jai.J.N. or Ja.J.N.
during the life of the case.
At the time of the hearing, Father was incarcerated. He did not allege
that his absence rendered him unaware of his children’s placement into care.
Instead, he claimed to have had contact with the children during their partially
supervised visitation with Mother in May and June of 2021. He acknowledged
that he had not seen Jai.J.N. or Ja.J.N. since Mother’s visits reverted to fully
supervised in July 2021. Outside these unsanctioned visits, there is no
evidence of contact between Father and Jai.J.N. or Ja.J.N. since the original
placement.
At the conclusion of the hearing, the orphans’ court issued decrees
terminating Father’s parental rights as to Jai.J.N. and Ja.J.N. pursuant to
§ 2511(a)(1). Father filed timely notices of appeal and concise statements
pursuant to Pa.R.A.P. 1925(a)(2). The orphans’ court filed responsive Rule
1925(a) opinions.5 This Court consolidated the appeals sua sponte.6
Father presents the following question for our consideration: “Did the
Lower Court abuse its discretion and err as a matter of law in finding that the
Agency met its burden to terminate Father’s parental rights under 23
Pa.C.S.A. Section 2511(a)(1), (2), (5), (8) and 2511(b)?” Father’s brief at 5.
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5 Since the opinions are substantially the same, we will cite solely to the
opinion for Jai.J.N. but apply it to both children.
6 Father sought to consolidate these cases with the appeal regarding Je.J.N.
This Court denied that motion.
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We begin with our standard of review for matters involving
involuntary termination of parental rights:
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. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized [the appellate court’s] deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (cleaned up). “The trial 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. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation
omitted). “[I]f competent evidence supports the trial court’s findings, we will
affirm even if the record could also support the opposite result.” In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
Termination of parental rights is governed by § 2511 of the Adoption
Act and requires a bifurcated analysis of the grounds for termination followed
by the needs and welfare of the child.
Our case law has made clear that under [§] 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 [§] 2511(a). Only if the court
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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 [§] 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).
Father argues that CYF failed to establish by clear and convincing
evidence the statutory grounds for termination of his parental rights pursuant
to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). See Father’s brief at 13.
We have defined clear and convincing evidence as that which 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.” In re
C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (cleaned up).
Termination is proper when the moving party proves grounds for
termination under any subsection of § 2511(a), as well as § 2511(b). T.B.B.,
supra at 395. To affirm, we need only agree with the trial court as to any
one subsection of § 2511(a), as well as § 2511(b). See In re B.L.W., 843
A.2d 380, 384 (Pa.Super. 2004) (en banc).
Here, the orphans’ court only made findings as to § 2511(a)(1) and (b).
Therefore, that is where we focus our analysis. These subsections 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:
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(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.
....
(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.
Our Supreme Court set forth the proper inquiry under § 2511(a)(1) as
follows:
Once 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 contact between
parent and child; and (3) consideration of the effect
of termination of parental rights on the child pursuant to Section
2511(b).
In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998) (citation
omitted). As it relates to timing, this Court further explained,
the trial court must consider the whole history of a given case and
not mechanically apply the six-month statutory provision. The
court must examine the individual circumstances of each case and
consider all explanations offered by the parent facing termination
of his or her parental rights, to determine if the evidence, in light
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of the totality of the circumstances, clearly warrants the
involuntary termination.
In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).
Critically, though, the court is prohibited from considering any efforts made
by a parent to remedy conditions after the filing of the termination petition.
23 Pa.C.S. § 2511(b).
The orphans’ court found that Father had not presented any credible
evidence that he had made any efforts to perform parental duties in the six
months leading up to the filing of the petition. Orphans’ Court Opinion
(Jai.J.N.), 4/25/22, at 2. Specifically,
Father acknowledged not having any contact with his children, the
agency or the court due to being “on the run” from outstanding
warrants. The child[ren] remain[ in foster care]. Father failed to
pay any support for the child[ren] over the life of the underlying
dependency action. He failed to attend medical appointments or
early intervention therapies . . .. He had not even inquired about
the care and welfare of the child[ren] until February, 2022. All
parental duties are being performed by the foster parents to whom
the children look to as their mother and father.
Id. (footnote omitted); see also N.T., 3/25/22, at 93 (“The fact that the
children were in placement and [Father] failed to make any efforts to maintain
regular and ongoing contact we find is a settled purpose to relinquish his
parental rights.”).
Father argues that termination under § 2511(a)(1) is improper because
he was present during some of Mother’s partially supervised visits in “May
and/or June of 2021” and he provided gifts to the children. See Father’s brief
at 16. He contends that there were no established goals for him to comply
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with and that he had begun to address his criminal issues, drug and alcohol
concerns, mental health concerns, and employment after he contacted CYF in
February 2022. Id. at 16-17.
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa.Super. 2002). In this
vein, “[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.” Id. at 340 (citation omitted). As it relates
to § 2511(a)(1), “[a] parent is required to exert a sincere and genuine effort
to maintain a parent-child relationship; the parent must use 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.” In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003)
(citation omitted). “This court has repeatedly recognized that 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 his or her
immediate physical and emotional needs.” Id. (cleaned up).
Even if Father was present during some of Mother’s partially supervised
visits in May or June of 2021, those preceded the relevant six-month period
for § 2511(a) analysis. Moreover, his eleventh-hour attempt to initiate
services after avoiding CYF for over one year is woefully insufficient to
overcome his absence from the children’s lives and non-compliance with the
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sole service requirement of contacting CYF so that CYF could determine what
services were necessary for Father to reunite with Jai.J.N. and Ja.J.N. The
record supports the conclusion of the orphans’ court that Father failed to
assume parental duties for Jai.J.N. and Ja.J.N. for at least six months prior to
the filing of the termination petition. He prioritized avoiding his legal troubles
over being a parent to Jai.J.N. and Ja.J.N. In doing so, he demonstrated his
desire to relinquish his parental claim to the children and refused and failed
to perform any parental duties. Accordingly, the orphans’ court did not err in
terminating his parental rights as to Jai.J.N. and J.N. pursuant to
§ 2511(a)(1).
Finally, we consider whether the orphans’ court committed an error of
law or abuse of discretion pursuant to § 2511(b). As explained
above, § 2511(b) focuses on the needs and welfare of the child, which
includes an analysis of any emotional bond that the children may have with
Father and the effect of severing that bond. L.M., supra at 511. The key
questions when conducting this analysis are whether the bond is necessary
and beneficial and whether severance of the bond will cause the child extreme
emotional consequences. In re Adoption of J.N.M., 177 A.3d 937, 944
(Pa.Super. 2018) (quoting In re E.M., 620 A.2d 481, 484–85 (Pa. 1993)). It
is important to recognize that the existence of a bond, while significant, is only
one of many factors courts should consider when addressing § 2511(b). In
re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting In
re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011)). Other factors include “the
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safety needs of the child, and . . . the intangibles, such as the love, comfort,
security, and stability the child might have with the foster parent.” Id.Father “acknowledge[s] that there has been little evidence of the
relationship and bond between Father and the children. It was Father’s hope
that once he began addressing his issues, which he began to do, this would
change.” Father’s brief at 23.
As a general matter, Pennsylvania does not require the orphans’ court
to enlist a formal bonding evaluation or base its needs and welfare analysis
upon expert testimony. In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2011).
“Common 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., supra, at 268. In
weighing the bond considerations pursuant to § 2511(b), “courts must keep
the ticking clock of childhood ever in 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. A court cannot “toll the well-being
and permanency” of a child indefinitely in the hope that a parent “will summon
the ability to handle the responsibilities of parenting.” In re C.L.G., 956 A.2d
999, 1007 (Pa.Super. 2008) (en banc) (citation omitted).
In relation to § 2511(b), the trial court concluded that there would be
“no adverse [e]ffect] on the child[ren] to terminate Father’s parental rights”
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because there was “no evidence of a bond” between Father and Jai.J.N. or
Ja.J.N. and it was in their best interest “to become free for adoption[.]”
Orphans’ Court Opinion (Jai.J.N.), 4/25/22, at 3. At the hearing, the orphans’
court explained further, as follows:
Although [F]ather believes that [Jai.J.N.] would recognize him as
his father, there is no evidence that he would or has any
recognition.
Again, given the age of the children and the lack of contact
by [F]ather within the six-month period, the [c]ourt finds that all
intangibles, such as love, comfort, security, and stability, have
been met wholly by others.
Father has not during the period of time necessary
addressed the developmental, physical, emotional needs and
welfare of the children, and, therefore, we do find that
[s]ubsection 2511(b) is fulfilled.
We note that the [c]ourt is unable to consider evidence by
a parent to remedy conditions that are initiated subsequent to
giving notice of the filing of the petition.
N.T., 3/25/22, at 95.
As noted, K.L. and her husband are a pre-adoptive resource for Jai.J.N.
and Ja.J.N. Since coming into their care, Jai.J.N. has entered Early
Intervention for behavioral issues and has made progress. Id. at 55-56.
Father has not been involved with those Early Intervention services, nor has
he attended any medical appointments for either child. Id. at 56.
At the termination hearing, Mr. Richard testified that “due to lack of
contact with the father, I guess I can’t make an assessment” as to whether
Jai.J.N. or Ja.J.N. views him as a parental figure. Id. at 24-25. However,
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Jai.J.N. refers to the foster parents as “[s]ome variation of mommy and
daddy.” Id. at 25; see also id. at 60. Moreover, K.L. testified that Jai.J.N.
has not inquired about Father. Id. at 60. Regarding Ja.J.N., who was pre-
verbal at the time of the hearing, K.L. stated that he calls the foster father
“dada.” Id. at 60. Father has not had any contact with the foster parents
regarding the children. Id. at 63-64.
As to the effects of termination on the children, Mr. Richard testified that
there may be some confusion for Jai.J.N. in the short-term, but “there would
not be a long-term negative effect” on the children. Id. at 32.
The certified record demonstrates that Jai.J.N. and Ja.J.N. are best
served by terminating the parental rights of Father in anticipation of adoption
by K.L. and her husband. There is no evidence of a bond between Father and
the children and, as noted, Father has not performed parental duties during
any significant period of time in the young children’s lives. Rather, it is the
foster parents who have provided a stable, loving environment that satisfies
each child’s developmental, physical, and emotional needs and welfare.
Moreover, the record bears out that each child has formed a healthy bond with
the foster parents. As such, the record supports the assessment of the
orphans’ court that termination is in the best interests of Jai.J.N. and Ja.J.N.
Based on the foregoing, we affirm the decrees terminating Father’s
parental rights.
Decrees affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2022
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